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* 


A.  COMPLETE  ACCOUNT 

OF  THE 

Proceeding  in  the  Court  of  Common  Pleas  for  the  County  of  Philadelphia. 


IN  EQUITY. 


BEFORE  THE  HONORABLE  JAMES  R.  LUDLOW, 

ONE  OF  THE  JUDGES  OF  SAID  COURT, 

TO  RESTRAIN  THE  YESTRY  OF 

ST.  CLEMENT’S  CHURCH 


FROM  DISMISSING  THE  RECTOR  AND  ASSISTANT  MINISTER  WITHOUT  A  TRIAL, 

AND  AGAINST  THE  PROTEST  OF  THE  CONGREGATION  OF  SAID  CHURCH, 

TOGETHER  WITH  AN  APPENDIX 

CONTAINING  STATEMENTS  OF  SIMILAR  CASES  IN  NEW  JERSEY, 
MICHIGAN,  MASSACHUSETTS  AND  MARYLAND. 


“To  whom  I  answered — It  is  not  the  manner  of  the  Romans  to  deliver  any  man  to  die, 
before  that  he  which  is  accused,  have  t  le  accusers  face  to  face,  and  have  license  to  answer  for 
himself  concerning  the  crime  laid  against  him.’’ — Acrs  xxv  v.  16. 


PHILADELPHIA: 

BOTJBQUI1T  &c  WELSH, 

LAW  BOOKSELLERS,  PUBLISHERS  AND  IMPORTERS, 

431  WALNUT  STREET. 

1871. 


Entered  according  to  Act  of  Congress,  in  the  year  1871,  by 
ROURQUIN  &  WELSH, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


ST.  CLEMENT’S  CHURCH  CASE. 


St.  Clement’s  Church,  at  the  corner  of  Twentieth  and 
Cherry  streets,  in  the  City  of  Philadelphia,  was  organized 
and  incorporated  in  the  year  1855.  The  Church  building 
was  erected  in  the  year  1857.  Sometime  about  Easter,  1869, 
the  Rev.  Hermon  G.  Batterson,  I).  D.,  was  called  to  the 
church  as  the  Rector,  and  the  Rev.  AT.  PI.  JST.  Stewart,  LL.  D., 
was  called  as  the  Assistant  Minister.  During  the  winter  of 
1870-71,  differences  upon  doctrinal  matters  arose  between 
the  Vestry  of  the  Church  and  the  Clergy,  which  finally  led 
to  an  open  rupture.  Pamphlets  were  published  on  both 
sides,  and  the  newspapers  were  resorted  to,  as  the  breach 
grew  wider.  At  the  annual  election  for  Vestrymen  on 
Easter  Monday  (April  10th),  1871,  two  tickets  wrere  pre¬ 
sented  to  the  electors — one  in  favor  of  the  Vestry  then  in 
office,  and  the  other  opposed  thereto.  The  announced  result 
was  in  favor  of  the  Vestry  by  a  small  majority  ;  hut  the  other 
party  were  not  satisfied  with  this  result,  and  they  therefore 
commenced  proceedings  to  contest  the  election.  While  these 
proceedings  were  pending,  the  Vestry  met  on  May  3d,  1871, 
and  passed  resolutions  dismissing  Drs.  Batterson  and  Stewart, 
from  their  offices  of  Rector  and  Assistant  Minister,  and  re¬ 
ferred  the  same  to  the  Right  Rev.  Wm.  Bacon  Stevens, 
Bishop  of  the  Diocese  of  Pennsylvania,  for  concurrence.  The 
same  day  (May  3d)  the  resolutions  were  presented  to  the 
Bishop,  and  on  the  next  day  received  his  concurrence. 
On  the  same  day  (May  4th)  the  Ministers  and  a  number 
of  their  congregation  filed  their  bill  of  complaint  in  Court 
of  Common  Pleas  of  Philadelphia  County,  for  an  injunc¬ 
tion  to  restrain  the  Vestry  from  dismissing  the  Ministers 
or  interfering  with  them  in  the  performance  of  the  duties 
and  functions  of  their  offices.  The  proceedings,  in  the  case 
were  as  follows. 


2 


6 


v 


In  the  Court  of  Common  Pleas  for  the  County  of 

Philadelphia. 

Of  March  Term ,  1871.  No.  37. 

IX  EQUITY. 

Between  IIermon  G.  Batterson.  William  II.  X.  Stewart, 
Charles  B.  Shillitoe,  Charles  B.  Sloan,  Samuel 
Ritchie,  Richardson  L.  Wright,  Jr.,  Lewis  G.  Bull, 
Henry  X.  Barnes,  J.  C.  Morrison,  J.  Douglas  Brown, 
John  IIuggakd,  Henry"  L.  Marple,  William  A.  Rolin, 
Stephen  Fuguet,  M.  Morris  Marple,  Walter  H. 
Tilden,  Thomas  Sinexon,  and  C.  Gedney  King,  in  be¬ 
half  of  themselves  and  such  other  members  of  “  The 
Rector,  Church  Wardens  and  Vestrymen  of  St.  Clement’s 
Church,  in  the  City  of  Philadelphia,”  as  may,  upon  appli¬ 
cation  to  the  Court,  become  parties  plaintiff  herein, 
Plaintiffs, 

and 

Henry  C.  Thompson,  John  Lambert,  Henry  S.  Lowber, 
P.  Pemberton  Morris,  Henry  Henderson,  Henry  Kor- 
ris,  George  X.  Allen,  James  Dougherty",  Charles  S. 
Pancoast,  Francis  R.  Abbott,  Edward  Borheic  and  T. 
Franklin  Cooper,  Defendants. 

To  the  Honorable  the  Judges  of  the  said  Court. 

Your  orators  complain  and  say: 

I.  That  they  are  members  of  “  The  Rector,  Church 
Wardens  and  Vestrymen  of  St.  Clement’s  Church,  in  the 
City  of  Philadelphia,”  a  body  politic  in  the  City  of  Philadel¬ 
phia,  incorporated  agreeably  to  the  provisions  of  the  Act  of 
the  General  Assembly  of  Pennsylvania,  entitled  “  An  Act  to 
confer  on  certain  associations  of  the  citizens  of  this  Common¬ 
wealth,  the  power  and  immunities  of  corporations  or  bodies 


politic  in  law,”  approved  April  6th,  1791,  and  by  the  due 
performance  of  all  things  thereby  required.  That  they  are  a 
part  of  the  congregation  of  St.  Clement’s  Church  aforesaid, 
within  the  city  and  county  of  Philadelphia,  and  that  they 
have  paid  for  and  now  hold  pews  or  sittings  in  the  said 
church. 

That  the  said  corporation  belongs  to,  and  that  it  is  under 
the  authority  and  regulations  of  the  canons,  doctrine,  dis¬ 
cipline  and  worship  of  the  Protestant  Episcopal  Church  in 
the  State  of  Pennsylvania,  and  of  the  Protestant  Episcopal 
Church  in  the  United  States  of  America. 

II.  That  some  of  the  defendants  are  members  of  the  said 
corporation,  and  they  all  claim  to  have  been  elected  to  he 
the  Vestry  of  the  said  Church  on  10th  April,  1871,  and  until 
1st  April,  1872.  But  in  truth  and  in  fact,  the  said  defend¬ 
ants  now  exercise  the  said  office  of  Vestry  contrary  to  the 
provisions  of  the  Church  charter  and  of  the  laws  of  this  Com¬ 
monwealth. 

That  on  the  18th  April,  1871,  a  suggestion  (a  copy  of 
which  is  hereto  annexed,  as  an  exhibit)  for  the  writ  of  quo 
warranto  was  filed  in  the  Supreme  Court  of  Pennsylvania, 
for  the  Eastern  District,  by  the  Commonwealth,  at  the  re¬ 
lation  of  Walter  H.  Tilden  and  others  therein  named,  pray¬ 
ing  due  process  of  the  law  against  the  defendants  herein, 
and  requiring  them  to  make  answer  to  the  said  Common¬ 
wealth  by  what  warrant  they  claim  to  have,  use  and  enjoy 
the  rights,  privileges,  liberties,  offices  and  franchises  of  the 
vestry  of  the  said  corporation. 

That  on  the  day  last  aforesaid,  the  writ  of  quo  warranto 
as  prayed  was  allowed  to  he  issued  by  Mr.  Justice  Sharswood. 
and  the  same  did  then  issue,  and  was  made  returnable  to  the 
first  Monday  of  May  last  past. 

That  the  defendants  named  in  the  writ  of  quo  xcarranto, 
who  are  also  the  defendants  herein,  have  appeared  in  the 
Supreme  Court  by  counsel,  but  they,  the  defendants,  have 
not  answered,  pleaded  or  demurred  to  the  said  suggestion 
filed,  and  the  proceedings  therein  are  now  pending  and  un¬ 
determined  in  the  said  Court. 


8 


III.  That  on  or  about  the  first  Sunday  in  March,  A.  D. 
1869,  the  Rev.  II.  G.  Batterson  became  and  was  and  from 
thence  continuously  hitherto  has  been  and  still  is  duly  and 
regularly  settled  in  St.  Clement’s  Church  aforesaid,  as  the 
Rector  thereof ;  and  that  on  or  about  Easter  Sunday,  A.  D. 
1869,  the  Rev.  W.  II.  X.  Stewart  became  and  was  and  from 
thence  continuously  hitherto  lias  been  and  still  is  duly  and 
regularly  settled  in  the  said  Church  as  the  Assistant  Minister 
thereof. 

That  both  the  Rev.  H.  G.  Batterson  and  the  Rev.  W.  H. 
X.  Stewart  have  had  Episcopal  ordination,  and  they  ever 
have  been  and  now  are  in  full  standing  with  the  Protestant 
Episcopal  Church  in  the  State  of  Pennsylvania,  and  in  the 
United  States,  and  recognized  as  such  by  the  Bishop  of  the 
Diocese  of  Pennsylvania. 

And  that  the  Rev.  II.  G.  Batterson  has  received  hitherto 
a  stated  salary  of  $1,000  each  year,  payable  quarterly;  and 
that  the  Rev.  W.  H.  X.  Stewart  has  received  hitherto  a 
stated  salary  of  $500  each  year,  payable  quarterly. 

IY.  That  on  the  third  of  May,  1871,  all  of  the  defendants, 
except  Charles  S.  Pancoast,  George  X.  Allen  and  James 
Dougherty,  assembled  in  Vestry  meeting,  at  which  the  Rev. 
II.  G.  Batterson,  in  accordance  with  the  provisions  of  the 
By-Laws  and  the  Charter  of  the  corporation,  presided. 

That  at  such  meeting  there  were  presented  for  the  action 
of  the  Vestry,  by  Henry  C.  Thompson,  the  following  resolu¬ 
tions,  to  wit : 

Resolved,  That  with  the  concurrence  of  the  ecclesiastical 
authority  of  the  Diocese,  the  Rev.  Hermon  G.  Batterson, 
D.  D.,  be  and  he  is  hereby  dismissed  from  the  Rectorship  of 
St.  Clement’s  Church,  such  dismissal  to  take  effect  upon  the 
concurrence  of  said  authority  therein. 

Resolved ,  That  with  the  concurrence  of  the  ecclesiastical 

authority  of  the  Diocese,  the  Rev.  AV.  H.  X.  Stewart,  LL.  D., 

be  and  he  is  hereby  dismissed  from  the  Assistant  Ministership 

of  St.  Clement’s  Church,  such  dismissal  to  take  effect  upon 

the  concurrence  of  said  authority  therein. 

*/ 

Resolved ,  That  the  foregoing  resolutions  be  laid  before  the 


9 


ecclesiastical  authority  of  the  Diocese,  and  that  Messrs.  Lam¬ 
bert  and  Morris  he  appointed  a  Committee  for  that  purpose. 

Resolved ,  That  the  Secretary  he  directed  to  notify  the  Rev. 
Drs.  Batterson  and  Stewart  of  the  passage  of  the  foregoing 
resolutions. 

That  the  Rev.  Id.  G.  Batterson  declined  to  entertain  any 
action  upon  the  said  resolutions,  and  he  also  declined  to  en¬ 
tertain  an  appeal  from  his  said  decision ;  Avhereupon  Henry 
S.  Lowber,  acting  as  the  Secretary  of  the  meeting,  at  the  re¬ 
quest  of  P.  Pemberton  Morris,  presented  the  resolutions  to  the 
meeting  for  its  action,  and  they  were  adopted  by  all  of  those 
present  except  the  Rev.  II.  G.  Batterson,  and  copies  thereof 
were  thereupon  sent  to  the  Rev.  Id.  G.  Batterson  and  the 
Rev.  W.  dl.  1ST.  Stewart.  The  meeting  then  adjourned  to 
meet  at  12  m.,  on  Saturday,  the  6th  of  May,  1871. 

And  that  there  has  been  no  presentment  whatever  against 
the  Rev.  Id.  G.  Batterson  and  the  Rev.  W.  Id.  1ST.  Stewart, 
nor  has  any  charge  whatever  been  made  against  them  upon 
which  a  hearing  has  been  allowed  them. 

V.  That  the  plaintiffs  charge  that  the  defendants  are  not 
now,  nor  wTere  they  at  the  time  of  their  action  upon  the  said 
resolutions  the  legal  representatives  of  the  said  Church. 

That  the  action  upon  the  said  resolutions  were  irregular 
and  unlawful ;  and  that  the  Vestry  of  the  corporation  afore¬ 
said  is  wholly  without  jurisdiction  and  power  to  dissolve  the 
connection  between  the  congregation  and  the  Rector  and 
Assistant  Minister. 

The  plaintiffs  believe  and  so  charge,  as  well  from  the  dis¬ 
position  and  temper  shown  in  the  said  action  of  the  defend¬ 
ants,  as  from  their  threats,  that  they  intend  (pending  their 
efforts  to  obtain  for  their  action  the  concurrence  mentioned 
in  the  resolutions)  to  prevent  by  acts  of  force  the  exercise  by 
the  Rector  and  Assistant  Minister  of  the  functions  of  their 
office  within  St.  Clement’s  Church  aforesaid. 

VI.  The  plaintiffs  further  say  : 

That  the  attempted  dissolution  of  the  connection  between 
the  congregation  and  the  Rector  and  Assistant  Minister  is  di- 


10 


rectly  in  opposition  to  tlie  wishes  of  the  plaintiffs  and  of  the 
congregation  ;  and  that  if  the  same  he  carried  out,  it  will,  to 
the  rights  of  the  plaintiffs  and  to  those  of  the  congregation 
in  the  church  property,  and  to  their  rights  to  their  pews  and 
sittings  therein,  work  an  irremediable  injury;  and  that  it 
will  imperil  anti  almost  destroy  the  leasing  value  of  the  said 
pews  and  sittings. 

Hence  the  plaintiffs  need  equitable  relief. 

1st.  That  it  may  be  adjudged  and  decreed  that  the  plain¬ 
tiffs  are  members  of  the  corporation  and  entitled  to  all  the 
rights  of  membership  therein,  and  to  the  pews  and  sittings 
for  which  they  have  paid. 

That  the  Rev.  II.  G.  Batterson  and  the  Rev.  "W\  II.  R. 
Stewart  are  ministers  who  have  been  duly  and  regularly  set¬ 
tled,  and  are  now  so  settled  in  St.  Clement's  Church  in  Phila¬ 
delphia.  And  that  while  they  are  so  settled  they  are  entitled 
to  exercise  their  office  therein  and  to  receive  the  stated  sala¬ 
ries  aforesaid. 

2d.  That  the  defendants  he  restrained  by  injunction  special 
until  hearing,  and  perpetual  thereafter,  from  dissolving  the 
connection  between  the  Rev.  II.  G.  Batterson  and  the  Rev. 
W.  H.  R.  Stewart  and  the  congregation  of  St.  Clement’s 
Church  of  Philadelphia ;  and  that  they  be  so  restrained  from 
intermeddling  or  taking  any  action  therein  as  a  Vestry  or  as 
Vestrymen. 

3d.  That  the  defendants,  their  agents  and  servants,  be  re¬ 
strained  as  aforesaid,  from  interfering  in  any  way  or  manner 
with  the  exercise  by  the  Rev.  H.  G.  Batterson  of  his  office 
of  Rector,  and  with  the  exercise  by  the  Rev.  W.  H.  R.  Stewart 
of  his  office  of  Assistant  Minister  in  St.  Clement’s  Church  of 
Philadelphia,  before  a  regular  and  canonical  dissolution  of 
the  connection  now  existing  between  them  and  the  congre- 
gation  of  the  said  Church,  shall  have  taken  place  in  accord¬ 
ance  with  the  constitution  and  canons  of  the  Protestant  Epis¬ 
copal  Church  in  Pennsylvania,  and  in  the  United  States. 


11 


4th.  Such  other  and  further  relief  as  the  Court  may  deem 
proper. 

¥M.  B.  ROBIN'S, 
HUM  HANSON, 

¥M.  S.  PRICE, 

Solicitors  for  Plaintiffs. 

City  and  County  of  Philadelphia ,  ss. : 

Walter  H.  Tilden  aud  Richardson  L.  Wright,  Jr.,  two 
of  the  plaintiffs  above  named,  having  been  duly  sworn  accord¬ 
ing  to  law,  say  that  the  statements  in  the  foregoing  hill  con¬ 
tained,  so  far  as  they  are  within  their  knowledge,  are  true, 
and  that  as  to  the  other  statements  they  verily  believe  them 
to  he  true. 

WALTER  H.  TILDEN, 
RICHARDSON  L.  WRIGHT,  Jr. 

Sworn  and  subscribed  before  me, 

this  4th  day  of  May,  1871. 

J.  P.  Delaney, 

Alderman. 

injunction  J Iffidnvit . 

IIeumon  G.  Batterson,  being  duly  sworn  according  to  law, 
says : 

I.  I  am  the  Rector  of  “  The  Rector,  Church  Wardens  and 
Vestrymen  of  St.  Clement’s  Church  in  the  City  of  Phila¬ 
delphia,”  a  corporation  which  has  been  duly  incorporated  in 
pursuance  of  the  Act  of  Assembly,  approved  April  6th,  1791, 
and  of  the  other  parties  plaintiff  to  the  above  bill,  the  Rev. 
William  IL.  N.  Stewart,  LL.D.,  is  the  Assistant  Minister,  and 
all  the  others  are  members  of  the  congregation  of  said  St. 
Clement’s  Church,  and  have  paid  for  and  now  hold  pews  or 
sittings  in  said  Church ;  and  the  said  Church  is  a  member  of 
and  subject  to  the  canons,  doctrine,  discipline  and  worship 
of  the  Protestant  Episcopal  Church  in  the  State  of  Penn¬ 
sylvania,  and  in  the  United  States  of  America. 

II.  All  of  the  defendants  in  this  suit  (excepting  Henry  S. 
LoAvher,  Henry  Henderson  and  Charles  S.  Pancoast)  are 


12 


' 


members  of  said  corporation,  and  all  of  them  claim  to  be  the 
Vestrymen  thereof,  by  virtue  of  an  election  for  one  year,  from 
April  10th,  1871 ;  but  in  truth  and  in  fact  the  defendants  now 
hold  their  said  office  contrary  to  the  provisions  of  the  charter 
of  said  Church  and  the  laws  of  Pennsylvania,  as  I  am  advised 
and  believe,  and  on  the  eighteenth  of  April,  1871,  an  infor¬ 
mation  for  a  writ  of  quo  warranto  was  filed  in  the  Supreme 
Court  of  this  Commonwealth  at  the  relation  of  Walter  II. 
Tilden  and  others,  for  the  purpose  of  contesting  the  election, 
by  virtue  of  which  the  defendants  assume  to  act  as  the 
Vestrymen  of  said  Church,  which  said  writ  of  quo  warranto 
was  duly  allowed  and  issued,  and  made  returnable  on  the 
first  Monday  of  May  last  past ;  and  the  defendants  have 
appeared  in  said  Supreme  Court  by  counsel,  but  have  not 
yet  answered,  pleaded  or  demurred  to  the  said  information, 
and  the  said  proceedings  are  still  pending  in  said  Court. 

III.  I  took  charge  of  said  Church  as  the  Rector  thereof  on 
or  about  the  first  Sunday  in  March,  1869,  and  Dr.  Stewart 
took  charge  thereof  as  the  Assistant  Minister  on  or  about 
Easter  Sunday,  1869,  and  both  of  us  since  then  have  been 
and  now  are  duly  settled  in  said  Church  as  the  Rector  and 
Assistant  Minister  thereof.  Both  Dr.  Stewart  and  I  have 
had  Episcopal  ordination,  and  ever  have  been  and  now  are 
in  full  standing  in  the  Protestant  Episcopal  Church  in  the 
State  of  Pennsylvania,  and  the  United  States  of  America, 
and  are  recognized  by  the  Bishop  of  the  Diocese  of  Penn¬ 
sylvania.  I  receive  for  my  services  a  salary  of  $1,000  per 
annum,  and  Dr.  Stewart  receives  a  salary  of  $500  per  annum. 

IV.  On  May  3d,  1871,  all  the  defendants  (except  Messrs. 
Pancoast,  Allen  and  Dougherty)  assembled  in  a  Vestry 
meeting,  at  which  I  presided.  At  that  meeting,  Henry  C. 
Thompson  introduced  resolutions  dismissing  Dr.  Stewart  and 
myself  from  our  offices  in  said  Church,  and  referring  the 
same  to  the  Bishop  of  the  Diocese  for  his  concurrence.  I 
declined  to  put  the  question  to  the  meeting,  because  as  I  said 
to  them,  the  right  to  pass  such  resolutions  was  a  doubtful 
one,  even  when  attempted  to  be  exercised  by  a  legally  elected 
^  estry,  and  that  a  Vestry  whose  title  was  disputed  and  in 
litigation,  had  no  right  to  pass  such  resolutions.  I  also  de- 


13 


clinecl  to  entertain  an  appeal,  when  Henry  S.  Lowber,  acting 
as  Secretary  of  the  meeting,  at  the  request  of  P.  Pemberton 
Morris,  took  the  vote  of  the  meeting  upon  said  resolutions, 
and  declared  them  adopted,  and  a  copy  thereof  was  given  to 
me.  The  meeting  then  adjourned  until  Saturday,  May  6th, 
1871,  when  they  will  take  final  action  upon  said  resolutions. 

V.  There  has  not  been  either  a  presentment  or  charge 
against  Dr.  Stewart  or  myself  on  which  a  hearing  has  been 
had.  I  believe  from  the  temper  and  disposition  shown  by 
the  defendants,  and  from  their  threats,  as  reported  to  me, 
that  they  desire,  and  will  not  cease  to  attempt  to  sever  the 
relation  between  the  congregation  of  St.  Clement’s  Church 
and  Dr.  Stewart  and  myself,  against  the  wishes  and  desires 
of  a  majority  of  the  said  congregation,  and  the  worshippers 
of  the  said  Church ;  and  that  the  defendants  will,  if  not  re¬ 
strained,  strive  to  prevent  Dr.  Stewart  and  myself  by  acts  of 
force,  from  exercising  the  functions  of  our  said  offices. 


On  May  4th,  1871,  the  Court  (Honorable  James  P.  Ludlow 
presiding)  granted  a  preliminary  injunction,  and  issued  a 
writ  in  the  following  form  : 

[Secoufrtthe]  City  and  County  of  Philadelphia,  ss.  : 

THE  COMMONWEALTH  OF  PENNSYLVANIA 

To  Henry  C.  Thompson,  John  Lambert,  Henry  S.  Lowber, 
P.  Pemberton  Morris,  Henry  Henderson,  Henry  Norris, 
George  N.  Allen,  James  Dougherty.  Charles  S.  Pan¬ 
coast,  Francis  R.  Abbott,  Edward  Borhek  and  T.  Frank¬ 
lin  Cooper,  Greeting: 

Whereas,  Hermon  G.  Batterson,  William  H.  N.  Stewart, 
Charles  B.  Shill itoe,  Charles  B.  Sloan,  Samuel  Ritchie,  Rich¬ 
ardson  L.  Wright,  Jr.,  Lewis  G.  Bull,  Henry  N.  Barnes,  J. 
C.  Morrison,  J.  Douglass  Brown,  John  Huggard,  Henry  L. 
Marple,  William  A.  Rolin,  Stephen  Fuguet,  M.  Morris  Mar- 
pie,  Walter  H.  Tilden,  Thomas  Sinexon,  and  C.  Gedney 


14 


King,  in  belialf  of  themselves  and  such  other  members  of 
“  The  Rector,  Church  Wardens  and  Vestrymen  of  St.  Clern- 
'  ent’s  Church,  in  the  City  of  Philadelphia,”  as  may,  upon  ap¬ 
plication  to  the  Court  become  parties  plaintiff  therein,  lately, 
that  is  to  say,  in  the  Term  of  March,  1871,  exhibited  their 
hill  of  complaint  before  the  Honorable  the  Judges  of  our 
Court  of  Common  Pleas  for  the  City  and  County  aforesaid, 
asking  relief  touching  the  matters  therein  particularly  com¬ 
plained  of  and  at  length  set  forth : 

Therefore,  by  the  consideration  of  the  Court  aforesaid, 
We  command  you,  the  said  Henry  C.  Thompson,  and  you 
the  said  John  Lambert,  and  you  the  said  Henry  S.  Lowber, 
and  you  the  said  P.  Pemberton  Morris,  and  you  the  said 
Henry  Henderson,  and  you  the  said  Henry  Norris,  and  you 
the  said  George  N.  Allen,  and  you  the  said  James  Dough¬ 
erty,  and  you  the  said  Charles  S.  Pancoast,  and  you  the  said 
Francis  R.  Abbott,  and  you  the  said  Edward  Borhek,  and 
you  the  said  T.  Franklin  Cooper,  not  to  dissolve  the  connec¬ 
tion  between  the  Reverend  II.  G.  Batterson,  and  the  Rev¬ 
erend  W.  II.  N.  Stewart,  and  the  Congregation  of  St.  Clem¬ 
ent’s  Church  of  Philadelphia,  and  not  to  intermeddle  or  take 
any  action  therein  as  a  Vestry  or  as  Vestrymen,  until  the 
further  order  of  said  Court  in  the  premises. 

And  we  command  you  the  said  Henry  C.  Thompson,  and 
you  the  said  John  Lambert,  and  you  the  said  Henry  S. 
Lowber,  and  you  the  said  P.  Pemberton  Morris,  and  you  the 
said  Henry  Norris,  and  you  the  said  Henry  Henderson,  and 
you  the  said  George  N.  Allen,  and  you  the  said  James 
Dougherty,  and  you  the  said  Charles  S.  Pancoast,  and  you 
the  said  Francis  R.  Abbott,  and  you  the  said  Edward  Bor¬ 
hek,  and  you  the  said  T.  Franklin  Cooper,  not  to  interfere 
in  any  way  or  manner  with  tlie  exercise  by  the  Reverend  II. 
G.  Batterson,  of  his  office  of  Rector,  and  with  the  exercise 
by  the  Reverend  W.  II.  N.  Stewart,  of  his  office  of  Assistant 
Minister,  in  St.  Clement’s  Church  in  Philadelphia,  before  a 
regular  and  canonical  dissolution  of  the  connection  now  ex¬ 
istin'’:  bet  ween  them  and  the  congregation  of  the  said  Church 
shall  have  taken  place,  in  accordance  with  the  constitution 
and  canons  of  the  Protestant  Episcopal  Church  in  Pcnnsyl- 


15 


vania,  and  in  the  United  States,  until  the  further  order  of 
said  Court  in  said  premises. 

Witness  the  Honorable  Joseph  Allison,  LL.  D.,  President 
of  our  said  Court  at  Philadelphia,  this  fourth  day  of  May, 

A.  D.  1871. 


P.  DOIN' AG- AH, 

Prothonotary. 


The  defendants  are  hereby  notified  that  a  special  injunc¬ 
tion  for  five  days,  has  been  granted  this  4th  day  of  May, 
1871,  and  that  on  May  6th,  1871,  at  eleven  o’clock  A.  m.,  a 
motion  will  be  made  to  the  Court  to  continue  said  injunction. 

WILLIAM  B.  ROBIN’S, 

IIU  HU  HAHSOH, 

WILLIAM  S.  PRICE, 

Solicitors  for  Plaintiffs. 

This  injunction  was  continued  from  time  to  time,  until 
May  20th,  1871,  when  the  parties  appeared  by  their  solicit¬ 
ors,  to  wit : 

Michael  Arnold,  Jr.,  William  B.  Robins,  E.  Hunn  Han¬ 
son,  and  William  S.  Price,  Esquires,  for  the  plaintiffs  ;  and 

George  M.  Conarroe,  George  W.  Biddle,  and  Edward 
Olmsted,  Esquires,  for  the  defendants. 

The  following  affidavits  and  exhibits  were  then  read  on 
the  part  of  the  plaintiffs : 


Affidavit  of  Sermon  G.  Batterson. 

I.  The  paper  marked  Exhibit  A,  is  a  list  of  the  pew- 
holders  in  St.  Clement’s  Church,  Philadelphia,  as  made  up 
from  the  list  last  furnished  tome  by  John  Lambert,  Account¬ 
ing  Warden  of  said  Church,  and  one  of  the  defendants  in  this 
suit,  and  other  credible  sources  of  information.  It  contains 
(including  Dr.  Stewart  and  myself)  88  names. 

II.  The  paper  marked  Exhibit  B,  is  a  list  of  the  communi¬ 
cants  of  said  Church.  It  is  taken  from  the  records  of  the 
Church,  and  contains  301  names. 

III.  The  paper  marked  Exhibit  C,  is  a  copy  of  a  paper  in 


16 


my  possession  signed  by  the  persons  whose  names  appear 
thereon,  and  used  by  their  authority,  and  all  of  whom  are 
pewliolders  in  said  Church.  It  contains  58  names. 

IV.  The  paper  marked  Exhibit  I),  is  a  copy  of  papers  in 
my  possession,  signed  by  the  persons  whose  names  are  there¬ 
upon,  and  used  by  their  authority,  and  all  of  whom  are 
regular  attendants  at  St.  Clement’s  Church,  and  207  of  whom 
are  communicants  there. 

V.  The  paper  marked  Exhibit  E,  is  a  copy  of  a  paper  in 
my  possession,  signed  by  18  of  the  votes  at  the  election  for 
Vestrymen  of  St.  Clement’s  Church  on  Easter  Monday,  1871. 
At  said  election  36  votes  were  received  and  counted,  the 
announced  result  being  19  for  the  defendants  and  17  for  their 
opponents. 

VI.  The  paper  marked  Exhibit  F,  is  a  correct  statement 
from  the  reports  of  the  condition  of  St.  Clement’s  Church 
to  the  Diocesan  Convention  for  1869,  1870,  and  1871. 

VII.  The  pew  owners  of  St.  Clement’s  Church,  are  the  estate 
of  William  S.  Wilson,  deceased,  which  owns  about  $40,000 
of  pews;  Henry  Henderson,  one  of  the  defendants,  who 
took  several  pews  in  payment  for  a  debt,  and  who,  although 
an  acting  Vestryman  of  said  Church,  is  neither  a  voter, 
attendant,  nor  communicant  thereat ;  James  A.  McCrea,  who 
sub-rents  his  pew,  and  is  a  member  of  and  an  attendant  at 
St.  Mark’s  Church,  and  not  St.  Clement’s ;  John  Lambert, 
Charles  S.  Pancoast,  and  Henry  Horns,  of  the  defendants,  of 
whom  the  said  Charles  S.  Pancoast  is  a  member  and  Vestry¬ 
man  of  and  attendant  at  St.  Michael’s  Church,  Germantown, 
and  not  at  St.  Clement’s  ;  George  W.  Hunter ;  and  Simon 
Delbert,  who  favors  the  plaintiffs  in  this  suit,  and  has  signed 
the  pew  holders'  paper  (Exhibit  C)  in  favor  of  Dr.  Stewart 
and  myself. 

VIII.  The  printed  book  marked  Exhibit  G,  is  a  copy  of 
the  Charter  and  By-Laws  of  St.  Clement’s  Church. 

IX.  The  Vestry  receive  the  funds  paid  into  said  Church 
for  the  purposes  of  paying  the  expenses  thereof,  and  they 
have,  since  Easter  Monday,  1871,  received  a  considerable 
amount  of  money  from  pew  rents  and  collections  at  the  ser¬ 
vices  of  the  Church. 


17 


X.  When  I  was  called  to  the  Rectorship  of  St.  Clement’s 
Church,  there  were  no  terms  of  tenure  stipulated  between  me 
and  the  congregation  or  Vestry.  There  was  no  contract  of 
hiring  for  a  year  or  for  any  other  period  of  time,  but  I  received 
and  accepted  the  call  according  to  the  usage  of  the  Protestant 
Episcopal  Church,  which  I  have  always  understood  to  be 
until  the  connection  was  dissolved  by  mutual  consent,  or 
until  I  should  be  removed  for  cause  shown,  and  after  trial 
and  conviction. 


Exhibit  A. 

A  list  of  the  pew  holders  in  St.  Clement’s  Church.  (Here 
follows  a  list  of  88  names,  including'the  ministers.) 


Exhibit  B. 

A  list  of  communicants  of  St.  Clement’s  Church.  (Here 
follows  a  list  of  801  names.) 


Exhibit  C. 

Whereas ,  It  has  been  intimated  to  us  that  certain  promi¬ 
nent  members  of  the  Vestry  of  St.  Clement’s  Church,  have 
signified  their  desire  to  bring  about  a  severance  of  the  re¬ 
lation  with  the  present  Rector  and  Assistant  Minister : 
Therefore ,  we,  pew  holders  in  St.  Clement’s  Church,  do  hereby 
express  our  entire  satisfaction  with  the  ministrations  and 
teachings  of  the  Rector  and  Assistant  Minister,  aud  our  hope 
that  the  relation  may  not  be  severed.  (Here  follows  a  list 
of  58  names.) 


Exhibit  D. 

Whereas ,  It  has  beeu  intimated  to  us  that  certain  promi¬ 
nent  members  of  the  Vestry  of  St.  Clement’s  Church,  have 
signified  their  desire  to  bring  about  a  severance  of  the  re¬ 
lation  with  the  present  Rector  and  Assistant  Minister : 


18 


Therefore ,  wo,  members  of  St.  Clement's  Parish,  do  hereby 
express  our  entire  satisfaction  with  the  ministrations  and 
teachings  of  the  Rector  and  Assistant  Minister,  and  our  hope 
that  the  relation  may  not  be  severed.  (Here  follows  a  list  of 
219  names,  of  whom  207  are  communicants.) 


Exhibit  E. 
For  Vestrymen. 


Walter  II.  Tilden, 
J.  Douglass  Brown, 
John  IIuggard, 
Henry  1ST.  Barnes, 
Samuel  Ritchie, 
Michael  Arnold,  Jr. 


Charles  B.  Stewart, 
Charles  B.  Sloan, 
William  A.  Rolin, 
Elias  L.  Boudinot, 
Francis  D.  Wetiierill, 
William  S.  Johnston. 


At  the  annual  election,  by  the  legal  voters  of  St.  Clement’s 
Church,  in  the  City  of  Philadelphia,  held  according  to  the 
charter,  on  Easter  Monday  ( April  lOthb  1871,  we,  whose 


names  are  hereunto  annexed, 
the  above  ticket : 

Walter  H.  Tilden, 

J.  Douglass  Brown, 

Henry  H.  Barnes, 

C.  D.  Kates, 

E.  D.  Wetherill, 

M.  M.  Marple, 

John  L.  Kates, 

Lewis  G.  Bull, 

W.  A.  Rolin,  (My  oivn 


hereby  declare  that  we  voted 

Charles  B.  Stewart, 

Delia  K.  Cozens, 

Mrs.  J.  B.  Parker, 

John  C.  Morrison, 

Maria  R.  Lamb, 

Emmeline  Griffith, 

John  Penn  Brock, 

B.  L.  LAXGSTROTn, 
e  excepted.) 


To  whom  it  may  Concern. 

I  hereby  declare  that  at  the  election  for  Vestrymen,  held  at 
St.  Clement’s  Church,  on  Easter  Monday  (April  10th),  1871, 
I  voted,  or  supposed  that  I  voted  the  ticket  favorable  to  the 
Rector. 

S.  FUGUET. 

Easter  Tuesday ,  April  11,  1871. 


19 


Exhibit  F. 

Report  of  St.  Clement’s  Church,  Philadelphia,  to  the  con¬ 


vention  of  the  Diocese,  May,  1869. 

Communicants . 120 

Pew  rents . . . $2,6-83  21 

Total  revenues  from  all  sources . $6,604  23 

Report  of  same,  May,  1870. 

Communicants . 274 

Pew  rents . . .  .  . $4,882  36 

Total  revenues  from  all  sources . $20,678  00 


(This  year  there  were  several  extraordinary  expenses  in¬ 
curred,  which  demanded  and  received  liberal  contributions 
from  the  members  of  the  Church,  and  some  friends  not  in 
the  Church.) 


Report  of  same,  May,  1871. 

Communicants .  301 

Pew  rent . - . $4,839  48 

Total  revenues  from  all  sources,  about . $13,244  00 


Exhibit  G. 

Charter  of  St.  Clement's  Church,  Philadelphia. 

Whereas ,  The  following  named  persons,  citizens  of  this 
Commonwealth,  viz.,  John  R.  Wilmer,  Charles  S.  Pancoast, 
John  Lambert,  George  H.  Kirkham,  Colin  Campbell  Cooper, 
J.  Dickinson  Logan,  John  Cooke,  and  George  W.  Biddle, 
have,  together  with  other  citizens  associated  for  the  purpose 
of  worshipping  Almighty  God  according  to  the  faith  and 
discipline  of  the  Protestant  Episcopal  Church  op  the 
United  States  of  America,  and  have  for  that  purpose 
formed  a  congregation  in  the  City  of  Philadelphia,  and  are 
now  desirous  to  he  incorporated  agreeably  to  the  provisions 
of  the  Act  of  General  Assembly  of  Pennsylvania,  entitled 
“  An  Act  to  confer  on  certain  associations  of  the  citizens  of 


20 


this  Commonwealth  the  powers  and  immunities  of  corpora¬ 
tions  or  bodies  politic  in  law ;  ”  they,  therefore,  declare  the 
following  to  be  the  objects,  articles  and  conditions  of  their 
said  association,  agreeably  to  which  they  desire  to  be  in¬ 
corporated,  viz. 


ARTICLE  I. 

The  name  of  the  corporation  shall  he  “The  Rector, 
Church  ‘Wardens  and  Vestrymen  of  St.  Clement’s  Church, 
in  the  City  of  Philadelphia.” 

article  II. 

This  Church  acknowledges  itself  to  he  a  member  of,  and 
to  belong  to  the  Protestant  Episcopal  Church  in  the  State 
of  Pennsylvania,  and  the  Protestant  Episcopal  Chnrch  in  the 
United  States  of  America.  As  such,  it  accedes  to,  recog¬ 
nizes  and  adopts  the  constitution,  canons,  doctrine,  dis¬ 
cipline  and  worship  of  the  Protestant  Episcopal  Church  in 
the  State  of  Pennsylvania,  and  of  the  Protestant  Episcopal 
Church  in  the  United  States  of  America,  and  acknowledges 
their  authority  accordingly. 

Any  member  of  this  Church  or  Corporation  who  shall  dis¬ 
claim,  or  refuse  conformity  to  the  said  authority,  shall  cease 
to  be  a  member  of  this  Corporation,  and  shall  not  be  elected 
or  vote  in  the  election  of  Vestrymen,  or  exercise  any  office  or 
functions  in,  concerning,  or  connected  with  the  said  Church 
'  or  Corporation. 


ARTICLE  III. 

The  rents  and  revenues  of  this  Corporation  shall  be  from 
time  to  time  applied  for  the  maintenance  and  support  of  the 
Rector,  Ministers  and  Officers  of  the  said  Church,  and  in  the 
erection  and  necessary  repairs  of  the  Church  and  church¬ 
yard,  and  parsonage  house,  and  other  houses,  which  now  do, 
or  hereafter  shall  belong  to  the  said  Corporation,  and  to  no 
other  use  and  purpose  whatsoever. 


21 


ARTICLE  IY. 

The  said  Corporation  shall  not  by  deed,  tine  or  recovery, 
or  by  any  other  means,  without  the  assent  of  the  Convention 
of  the  Protestant  Episcopal  Church  of  the  State  of  Penn¬ 
sylvania,  or  of  the  Standing  Committee  of  the  Diocese,  pre¬ 
viously  had  and  obtained,  grant,  sell,  alien,  or  otherwise 
dispose  of  any  lands,  messuages,  tenements,  or  hereditaments 
in  them  vested,  or  charge  or  encumber  the  same  to  any 
person  or  persons  whomsoever  ;  and  they  shali  have  the  right 
to  take  and  hold  real  and  personal  property :  Provided ,  The 
clear  and  yearly  value  or  income  thereof  does  not  at  any 
time  exceed  the  sum  of  two  thousand  dollars. 


ARTICLE  V. 

The  Rector  of  this  Church  shall  be  elected  by  the  Church 
Wardens  and  Vestrymen,  in  such  manner  as  the  statutes  and 
By-laws  shall  ordain. 

The  Vestry  of  the  said  Church  shall  consist  of  twelve 
persons,  members  of  the  said  Church,  who  shall  continue  in 
office  for  one  year,  and  until  others  be  chosen  ;  and  the 
election  of  such  Vestry  shall  be  made  every  year,  on  Easter 
Monday,  by  a  majority  of  such  members  of  the  said  Church 
as  shall  appear  by  the  Vestry  books  to  have  paid  two  succes¬ 
sive  years,  immediately  preceding  the  time  of  such  election, 
for  a  pew  or  sitting  in  the  said  Church  :  Provided,,  That  until 
the  next  Easter  Monday,  after  the  expiration  of  five  years 
from  the  date  of  the  Charter,  members  of  the  said  Church, 
who  shall  in  any  way  have  contributed  to  the  erection  of  the 
Church,  or  to  the  support  of  the  Rector  or  Minister  thereof, 
shall  be  entitled  to  vote  at  the  election  of  Vestrymen.  And, 
provided,  That  in  case  of  the  failure  to  elect  Vestrymen  on 
that  day,  the  Corporation  shall  not  on  that  account  be 
dissolved,  but  the  election  shall  be  holden  on  some  other  day, 
in  such  manner  as  the  By-laws  may  prescribe. 

3 


22 


ARTICLE  VI. 

Xo  person  shall  be  Rector  or  Assistant  Minister  of  this 
Church  unless  he  shall  have  had  Episcopal  ordination,  and 
unless  he  he  in  full  standing  with  the  Protestant  Episcopal 
Church  of  the  State  of  Pennsylvania,  and  of  the  United 
States,  and  recognized  as  such  by  the  Bishop  of  this  Diocese, 
or  in  case  of  vacancy  in  the  Episcopate,  by  the  Standing 
Committee  of  the  Diocese. 

ARTICLE  VII. 

The  said  Vestry  shall  have  full  power  to  choose  their  own 
officers,  and  they  shall  annually,  at  their  first  meeting  after 
their  election,  elect  one  of  their  own  number,  to  be  one 
Church  Warden,  and  the  Rector  for  the  time  being,  shall 
choose  another  of  the  said  Vestrymen  to  be  the  other 
Church  Warden  of  the  said  Church.  In  case  of  a  vacancy 
in  the  office  of  Rector  at  the  time  of  the  election,  the  other 
Church  Warden  shall  also  be  elected  by  the  Vestry,  to  re¬ 
main  until  the  election  of  a  Rector  or  a  new  election  of  the 
Vestry.  And  during  such  vacancy,  the  Church  Wardens 
for  the  time  being,  and  Vestrymen,  shall  have  the  same 
powers  and  authorities  relating  to  the  disposition  of  the 
rents  and  revenues  of  the  said  Corporation,  as  are  hereby 
vested  in  the  Rector,  Church  Wardens,  and  Vestrymen : 
Provided  always ,  That  it  shall  be  the  duty  of  the  said 
Church  Wardens  and  Vestrymen  to  elect  another  Rector  to 
supply  the  vacancy  as  soou  as  conveniently  may  be.  And 
said  Vestry  shall  have  the  power  to  make  By-laws  not 
repugnant  to  the  Constitution  and  laws  of  the  United  States 
of  America,  this  State,  or  this  Charter. 

ARTICLE  VIII. 

The  following  named  persons  to  be  the  Church  Wardens 
and  Vestrymen,  to  continue  in  office  until  the  election  on 
Easter  Monday  next,  and  until  others  be  chosen,  viz.,  John 


23 


E.  Wilmer,  Charles  S.  Pancoast,  John  Lambert,  George  H. 
Kirkham,  Colin  Campbell  Cooper,  J.  Dickinson  Logan,  John 
Cooke,  and  George  W.  Diddle,  and  in  case  of  vacancy,  by 
resignation  or  otherwise,  such  vacancy  to  be  filled  by  per¬ 
sons  chosen  by  the  remaining  Vestrymen,  and  to  continue 
in  office  until  another  election  shall  take  place. 


John  E.  Wilmer, 
John  Lambert, 
George  II.  Kirkham, 
C.  Campbell  Cooper, 


J.  Dickinson  Logan, 
John  Cooke, 

George  W.  Biddle, 
Charles  S.  Pancoast. 


I  certify  that  I  have  perused  and  examined  the  foregoing 
instrument  of  association  of  the  Eector,  Church  "Wardens, 
and  Vestrymen  of  St.  Clement’s  Church,  in  the  City  of 
Philadelphia,  and  am  of  opinion  that  the  objects,  articles, 
and  conditions  therein  set  forth  and  contained  are  lawful. 


THOMAS  E.  FEAHKLIF, 
Attorney  General. 


Lancaster  May  30, 1855. 


We  certify  that  we  have  perused  and  examined  the 
foregoing  instrument  of  association  of  the  Eector,  Church 
Wardens,  and  Vestrymen  of  St.  Clement’s  Church,  in  the 
City  of  Philadelphia,  and  are  of  opinion  that  the  objects, 
articles,  and  conditions  therein  set  forth  and  contained  are 
lawful. 

ELLIS  LEWIS, 

W.  IT.  LOWEIE, 

GEO.  W.  WOODWAED, 
JOTIU  C.  KXOX, 

J.  S.  BLACK 

Bedford,  August  15,  1855. 

I,  William  II.  Miller,  Prothonotary  of  the  Supreme 
Court  of  Pennsylvania  for  the  Middle  District,  do  certify 
that  the  foregoing  instrument  of  writing  was  duly  presented 
to  the  Judges  of  the  Supreme  Court  of  Pennsylvania,  and 


24 


was  by  them  duly  allowed,  as  appears  by  their  above  certi¬ 
ficate. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and 
affixed  the  seal  of  the  said  Supreme  Court,  at  Harrisburg, 
this  thirteenth  day  of  September,  A.  1).  1855. 

WILLIAM  H.  MILLER, 
[seal.]  Froth.  Sup.  Ct. 

The  lawfulness  of  the  objects,  articles,  and  conditions  of 
the  within  Charter  of  the  Rector,  Church  Wardens,  and 
Vestrymen  of  St.  Clement’s  Church,  in  the  City  of  Phila¬ 
delphia,  having  been  certified  to  by  the  Attorney  General, 
and  Supreme  Court  of  the  State  of  Pennsylvania,  I  hereby 
require  the  Secretary  of  State  of  said  Commonwealth  to  en¬ 
roll  the  said  Charter  at  the  expense  of  the  applicants. 

JAMES  POLLOCK 

Sept.  13,  A.  D.  1855. 

Executive  Chamber,  Harrisburg. 


Secretary’s  Office. 

Pennsylvania ,  ss.  : 

Enrolled  in  Charter  Book,  Volume  Ho.  7,  pages 
595,  596,  597  and  598. 

In  testimony  whereof  I  have  hereunto  set  my  hand  and 
caused  the  seal  of  the  Secretary’s  Office  to  be  affixed,  at 
Harrisburg,  this  thirteenth  day  of  September,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  fifty-five. 

JOIIX  M.  SULLIVAX, 

Pep.  Sect' y  of  the  Comm  tlx. 


25 


By-laws  of  St.  Clemeiit’s  Church,  Philadelphia, 


ARTICLE  I. 

Of  Vestrymen  and  the  Election  of  Vestrymen. 

Sect.  1.  No  person  shall  he  eligible  to  the  office  of  Vestry¬ 
man,  unless  he  shall  have  been  a  worshipper  and  the  renter 
of  a  seat  or  sittings  for  two  years  next  preceding  his  election, 
and  not  in  arrears ;  or  the  holder  of  permanent  sittings  in 
the  Church  at  the  time  of  his  election:  Provided ,  That  until 
Easter  Monday,  1861,  all  persons  who  have  contributed  to 
the  erection  of  the  Church  shall  he  eligible  for  election  as 
Vestrymen. 

Sect.  2.  The  time  and  place  for  holding  the  election,  as 
provided  for  in  the  fifth  article  of  the  Charter,  shall  be  an¬ 
nounced  to  the  congregation  on  the  Sunday  next  preceding 
the  day  of  the  election. 

Sect.  3.  The  Vestry  shall  choose  two  pew-holders,  one  of 
whom  shall  be  a  Vestryman,  to  be  judges  of  the  election, 
and  shall  cause  them  to  he  notified  in  due  time  of  their  ap¬ 
pointment.  In  case  the  judges  so  appointed  should  neglect 
to  act,  then  the  Wardens  shall  make  a  new  appointment,  or 
if  not  convenient  at  the  time  to  do  so,  act  themselves  as 
judges  of  the  election. 

Sect.  4.  It  shall  he  the  duty  of  the  judges  to  open  the 
polls  at  twelve  o’clock  M.  at  the  place  specified  for  the  elec¬ 
tion  of  Vestrymen,  in  conformity  with  the  Charter  and  By¬ 
laws  of  the  Corporation,  and  to  close  the  same  at  two  o’clock 
p.  M.,  unless  the  said  judges  shall  deem  it  proper  to  continue 
them  open  longer.  At  the  close  of  the  polls  the  judges  shall 
count  the  votes,  and  thereupon  notify,  or  cause  to  be  notified, 
each  of  the  candidates  elected,  to  attend  a  meeting  of  the 


26 


Vestry  to  be  held  on  the  next  day  following  the  election,  at 
an  hour  named  in  the  notice,  for  the  purpose  of  organizing ; 
to  which  meeting  the  judges  shall  make  their  official  return, 
in  writing. 

Sect.  5.  The  Vestry  shall  cause  the  return  of  the  judges 
of  the  election  to  be  entered  at  large  upon  their  minutes ; 
and  in  case  of  vacancies  by  resignation  or  otherwise,  such 
vacancies  shall  he  filled  by  persons  chosen  by  the  remaining 
Vestrymen,  and  who  shall  continue  in  office  until  the  next 
annual  election  ;  the  result  of  the  election  shall  be  publicly 
announced  in  the  Church  on  the  Sunday  next  following. 

Sect.  6.  In  case  of  a  failure  to  elect  Vestrymen  on  Easter 
Monday,  then  the  election  may  he  held  at  any  other  time, 
which  the  Vestry  in  office  shall  appoint  for  that  purpose. 

ARTICLE  II. 

Of  the  Meetings  of  Vestry ,  Election ,  Order  of  Business ,  fc. 

Sect.  1.  The  stated  meetings  of  the  Vestry  shall  he  held 
on  Easter  Tuesday,  and  thereafter  on  the  first  Tuesday  in  the 
months  of  June,  October  and  January,  throughout  the  year, 
at  such  time  and  place  as  the  Vestry  may  appoint. 

Sect.  2.  Five  members  shall  constitute  a  quorum  for  the 
transaction  of  business :  Provided ,  That  no  sum  of  monev 
exceeding  one  hundred  dollars  shall  he  disposed  of,  nor  any 
salary  increased,  unless  the  notices  of  such  meeting  shall 
contain  the  words,  “  money  to  he  disposed  of,”  or  unless 
eight  members  of  the  Vestry  he  present,  the  consent  of  a  ma¬ 
jority  of  whom  shall  he  necessary. 

Sect.  3.  At  the  first  stated  meeting  after  their  election, 
the  A  estry  shall,  pursuant  to  the  seventh  article  of  the 
Charter,  elect  one  of  their  number  who  shall  he  “  The  Ac¬ 
counting  Church  Warden,"  the  Rector  shall  appoint  another 
member  of  the  Vestry  who  shall  he  “  The  Rector’s  Church 


27 


Warden.”  The  Vestry  shall  then  elect  a  Secretary,  from 
their  own  bocty ;  and  shall  also  elect  such  other  officers  as 
may  he  necessary.  The  Vestry  shall  also  elect  Lay  Deputies 
to  represent  the  Parish  in  the  Diocesan  Convention,  as  re¬ 
quired  by  the  Canons  of  the  Church.  In  case  of  failure  to 
elect  officers  and  Lay  Deputies,  or  either  of  them  as  afore¬ 
said,  the  election  may  be  held  at  any  subsequent  meeting  of 
the  Vestry.  All  elections  shall  he  by  ballot,  unless  the  same 
shall  be  dispensed  with  by  unanimous  consent. 

Sect.  4.  The  Rector,  either  Church  Warden,  or  any  two 
of  the  Vestry,  may  require  the  Secretary  to  call  special  meet¬ 
ings,  and  written  notice  of  any  such  meetings  shall  be  left 
at  the  house  or  place  of  business  of  each  Vestryman  at  least 
twenty-four  hours  before  the  proposed  time  of  meeting,  sig¬ 
nifying  the  time  and  place  and  object  thereof. 

Sect.  5.  The  Rector,  or  in  his  absence  the  Rector’s  Church- 
Warden,  shall  preside  at  the  meetings  of  the  Vestry  ;  hut  if 
both  shall  be  absent,  then  any  other  member  present  may  be 
appointed  Chairman  for  the  time. 

article  in. 

Of  the  Election  of  a  Rector  or  Assistant- Minister. 

Sect.  1.  For  the  election  of  a  Rector,  or  Assistant  Minis¬ 
ter,  at  least  eight  votes  of  the  Vestry  shall  he  necessary: 
Provided ,  That  the  consent  of  the  Rector  shall  always  he 
necessary  to  render  the  election  of  an  Assistant  Minister 
valid. 

Sect.  2.  In  either  case,  the  person  to  be  elected  must  have 
been  openly  nominated,  at  a  previous  meeting  of  the  Vestry, 
the  notices  of  which  shall  have  been  issued  at  least  one  week 
previous  to  the  holding  thereof,  and  shall  have  expressed 
therein,  that  such  nomination  would  then  be  made  and  re¬ 
ceived  ;  and  the  notices  for  the  meeting,  at  which  such  elec¬ 
tion  is  intended,  shall  express  such  intention  ;  and  no  election 


28 


as  aforesaid  shall  be  held,  until  at  least  two  weeks  shall  have 
elapsed  from  and  after  the  nomination  of  the  candidate  or 
candidates. 

Sect.  3.  The  election  of  a  Rector  or  Assistant  Minister 
shall  he  by  ballot. 

Sect.  4.  In  the  case  of  the  election  of  a  Rector  or  an  As¬ 
sistant  Minister,  publication  thereof  shall  he  made  on  the 
next  ensuing  Sunday,  by  the  officiating  minister,  morning 
and  evenino’. 

O 


ARTICLE  IV. 

Of  the  Church  Wardens ,  Secretary  and  Sexton. 

Sect.  1.  The  Church  Wardens  shall  have  a  general  super¬ 
intendence  over  the  property  of  the  corporation,  and  shall 
take  care  that  the  Sexton  and  other  officers  perform  their 
respective  duties  in  a  satisfactory  manner,  and  that  order  he 
maintained  in  and  about  the  Church  during  the  time  of 
divine  service.  They  shall  have  power  to  make  purchases  of 
all  articles  necessary  for  the  use  of  the  Church,  not  exceed¬ 
ing  in  amount  one  hundred  dollars  per  quarter,  unless  by 
order  of  the  Vestry. 

Sect.  2.  The  Accounting  Church  Warden  shall  have  the 
custody  of  the  title  papers,  seal,  and  account  books  of  the 
Corporation.  lie  shall  have  charge  of  all  the  revenues  of  the 
Corporation,  which  he  shall  deposit  in  one  of  the  banks  of 
this  city,  to  his  credit  as  Accounting  Warden  of  St. 
Clement’s  Church,  and  shall  disburse  them  under  the  orders 
of  the  Vestry,  and  shall  enter  in  a  hook,  to  he  kept  for  the 
purpose,  all  sums  received  and  paid  by  him,  which  book  shall 
he  open  to  the  inspection  of  the  Vestry  if  required.  He 
shall  pay  the  Rector,  and  all  other  officers  of  the  Corporation 
respectively,  the  stated  salaries  or  compensation  quarter- 
yearly.  And  for  all  payments  made  by  him,  he  shall  take 
lull  and  proper  receipts,  as  his  vouchers  therefor.  He  shall 
render  to  the  "\  estry  annual  accounts  of  all  receipts  and  dis- 


29 


bursements  at  the  stated  meeting  on  Easter  Tuesday ;  and 
shall  at  that  time  have  prepared  and  lay  before  the  Y estry ,  a 
statement  of  all  the  debts  and  liabilities  of  the  Corporation, 
in  detail,  and  to  whom  the  same  are  owing,  respectively ; 
and  also  a  statement  of  all  the  property,  claims,  and  effects 
belonging  to  the  Corporation,  which  accounts  shall  be  referred 
to  a  committee  to  be  audited.  lie  shall  have  special  charge 
of  the  communion  plate,  &c.,  and  shall  provide  the  bread 
and  wine  necessary  to  the  administration  of  the  Holy  Com¬ 
munion.  It  shall  be  the  duty  of  the  Vestry  to  collect  the 
alms  of  the  congregation  when  required. 

Sect.  3.  The  Secretary  shall  keep  regular  minutes  of  the 
proceedings  of  the  Vestry,  notify  its  members  of  all  its  meet¬ 
ings,  call  special  meetings  when  required,  and  perform 
generally  such  duties  as  appertain  to  the  office. 

Sect.  4.  All  books  and  papers,  the  property  of  the  Corpora¬ 
tion,  shall  be  delivered  by  the  Secretary  and  Wardens  to 
their  successors  in  office. 

Sect.  5.  The  Sexton,  besides  his  constant  care  of  the  Church, 
shall  perform  all  other  duties  connected  with  its  affairs  which 
shall  be  required  by  the  Rector  or  either  of  the  Wardens. 

ARTICLE  V. 

Registers. 

The  Accounting  Church  Warden  shall  provide  a  book,  to 
be  kept  under  lock  in  the  Vestry  room,  in  which  the  Rector 
or  officiating  Minister  shall  enter  an  account  of  all  marriages, 
baptisms,  confirmations,  and  funerals  at  which  he  shall  have 
officiated — the  record  to  state  the  date  of  the  marriages,  and 
names  of  the  parties,  with  the  names  of  the  parents  ;  the  date 
of  the  birth  of  the  child  baptized,  with  its  name  and  those  of 
the  parents  and  sponsors ;  the  name  of  the  adult  baptized, 
with  those  of  the  sponsors  ;  the  name  of  the  person  con¬ 
firmed  ;  and  the  name  and  age  of  the  person  buried,  with 
the  date  of  his  or  her  death. 


30 


This  book  shall  belong  to,  and  remain  with  the  Vestry  as 
part  of  the  Church  Records. 

Certificates  from  these  records,  under  seal,  shall,  when  re¬ 
quested,  be  given  without  charge,  by  the  Wardens. 

ARTICLE  VI. 

Committees. 

The  Standing  Committees  shall  be  appointed  by  the  Rec¬ 
tor,  and  shall  consist  of  three  members  on  the  Committee 
of  Accounts,  three  members  on  the  Committee  on  Music,  five 
members  on  the  Committee  on  Distribution  of  Collections, 
three  members  on  the  Committee  on  Sunday  Schools,  three 
members  on  the  Steeple  and  Bells. 

ARTICLE  VII. 

Pews  and  Pew  Rents. 

Sect.  1.  Any  person  may  acquire  a  right  to  hold  perma¬ 
nent  sittings  in  the  Church,  the  Vestry  not  objecting,  by 
paying  such  a  sum  as  shall  have  been  assessed  upon  such 
sittings  by  the  Vestry,  a  list  of  which  shall  always  hang  in 
the  Vestry  room:  Provided ',  That  no  person  shall  hold  less 
than  all  the  permanent  sittings  in  one  pew. 

Sect.  2.  All  other  sittings  shall  be  termed  “  rented  sit¬ 
tings,”  and  shall  be  set  forth  and  described  in  a  book  to  be 
kept  for  that  purpose.  Ro  such  sitting  shall  be  rented  for 
anvterm  exceeding  one  vear  from  the  next  semi-annual  col- 
lection  day ;  and  the  rent  or  compensation  shall  be  payable 
semi-annually  in  advance  on  the  first  Mondays  of  April  and 
October.  The  actual  renter  not  being  in  arrears,  shall  have 
a  preference  over  any  other  applicant  for  the  same  sitting  or 
sittings. 

Sect.  3.  A  register  of  permanent  and  rented  sittings  in  the 
Church  shall  be  kept  by  the  Accounting  Church  Warden. 

Sect.  4.  All  transfers  of  permanent  sittings  shall  be  made 
in  writing,  in  a  book  to  be  kept  for  that  purpose  by  the  Ac- 


31 


counting  Church  Warden,  hut  no  transfer  shall  have  any 
effect  until  it  he  approved  by  the  Vestry,  and  entered  in  the 
said  register. 

Sect.  5.  The  Accounting  Church  Warden  shall  have  power 
to  let  any  vacant  sittings,  subject  to  the  approbation  of  the 
Vestry,  and  he  shall  report  at  each  meeting  all  the  sittings 
let  since  the  last  meeting,  which,  being  approved,  shall  be 
entered  on  the  Minute  Book  of  the  Vestry. 

Sect.  6.  When  the  same  pew  is  rented  by  more  than  one 
person,  no  particular  part  of  the  pew  shall  he  considered  as 
belonging  exclusively  to  any  or  either  of  them,  and  in  case 
of  dispute,  the  Accounting  Warden  shall  adjust  the  same. 
If  either  of  the  parties  shall  refuse  to  acquiesce,  the  matter 
shall  he  decided  by  the  Vestry. 

Sect.  7.  If  any  person  holding  permanent  sittings  in  the 
Church,  shall  let,  sell,  or  otherwise  dispose  of  the  same  to 
any  other  person,  without  the  consent  of  the  Vestry,  his 
right  therein  shall  be  forfeited. 

Sect.  8.  The  pew  rents  shall  be  payable  in  such  place  as 
the  Vestry  may  designate  semi-annually,  on  the  first  Mon¬ 
days  in  April  and  October  in  each  year;  and  all  persons  in¬ 
debted  for  pew  rent  shall  he  hound  to  pay  the  same  then  and 
there,  without  further  demand. 

Sect.  9.  If  any  person  shall,  for  the  space  of  six  calendar 
months,  be  in  arrear  for  a  year’s  pew  rent,  for  any  sitting  or 
sittings,  the  Accounting  Church  Warden  shall  have  power 
forthwith  thereafter  to  let  the  same  as  vacant.  Or  if  any 
person  holding  permanent  sittings  in  the  Church,  shall  be  in 
arrear  for  the  tax  upon  the  same  for  the  space  of  two  years, 
his  or  her  right  therein  shall  be  forfeited. 

Sect.  10.  When  any  permanent  sittings  shall  he  forfeited, 
the  same  shall  be  reported  to  the  Vestry,  and  being  approved, 
the  name  of  the  holder  shall  be  erased  from  the  register. 

O 


Sect.  11.  The  tax  upon  permanent  sittings  shall  he  as 
directed  from  time  to  time  by  the  V estry. 

Sect.  12.  The  carpets  of  the  pews  shall  not  be  removed 
from  the  Church  except  by  order  of  the  Vestry  :  the  cushions 
of  the  pews  shall  be  uniform  in  color  and  material,  as  di¬ 
rected  by  the  Vestry. 


article  tin. 

Seal  of  tie  Corporation. 

The  Seal — representing  a  celestial  crown  with  the  circum¬ 
scription,  "Sigillum  Ecclesife  S.  Clementis.  Fhilada." — shall 
be  of  metal :  it  shall  be  used  in  all  acts  of  the  Vestry  requir¬ 
ing  the  seal,  and  only  by  their  order. 

ARTICLE  IX. 

Repeal  or  alteration  of  the  By-laws. 

Vo  repeal  or  alteration  of  these  By-laws  shall  be  made, 
unless  j  reposed  at  a  previous  meeting,  and  adopted  by  two-  • 
thirds  of  the  members  present ;  the  notices  for  both  meetings 
having  expressed  that  alterations  in  the  By-laws  will  be  pro¬ 
posed  or  acted  upon. 


Affidavit  of  TT*.  B.  .V.  Stewart. 

L  I  am  the  Assistant  Minister  of  St.  Clement's  Church, 
Philadelphia,  and  entered  upon  the  duties  of  my  said  office 
on  or  about  Easter  day.  1869.  My  salary  is  $500  a  year. 

II.  I  have  during  all  of  the  time  of  my  connection  with 
said  Church,  received  only  three  communications  from  the 
Vestry  of  said  Church;  the  first  calling  me  as  Assistant 
Miuister  of  said  Church :  the  second  conveying  resolutions 
of  thanks  for  a  memorial  window  I  put  therein,  and  the 
third  dismissing  me  therefrom. 

III.  I  have  never  been  charged,  presented,  or  tried  for 
any  offence  whatever,  aud  I  have  never  had  any  quarrel 
with  any  member  of  said  Church,  but  on  the  contrary,  have 


had  the  assurance  of  large  numbers  of  them  of  their  coufi- 
deuce  in  me,  and  their  desire  that  I  should  not  leave  said 
Church. 

IV.  VThen  I  was  called  to  and  accepted  the  Assistant 
Ministership  of  St.  Clement’s  Church,  no  terms  in  regard  to 
any  tenure  were  stipulated  and  agreed  upon  between  me  and 
the  M estiy,  or  congregation  of  the  said  Church.  There  was 
no  contract  of  hiring  between  us,  for  a  year  or  any  other 
term,  but  I  accepted  the  office  according  to  the  usage  of  the 
Protestant  Episcopal  Church.  I  have  always  understood  it 
to  he,  until  the  relation  of  Minister  and  people  was  dissolved 
by  mutual  consent,  or  the  Minister  was  removed  for  cause 
shown  after  trial  or  regular  investigation.  I  have  been  in 
the  ministry  of  the  Church  twenty-seven  years,  and  nineteen 
of  them  in  the  United  States,  and  have  had  charge  of  four 
Parishes  in  that  time.  I  have  never  known  of  the  dismissal 
of  a  Minister  by  the  ex  parte  action  of  any  one,  Vestry,  or 
congregation,  or  Bishop,  and  I  have  always  understood  and 
believe,  that  I  am  not  at  liberty  to  leave  the  Church  of  my 
own  Parish  by  my  own  mere  motion,  but  that  I  must  have 
the  consent  of  the  Parish,  or  obtain  permission  from  the  au¬ 
thorities  of  the  Diocese  for  cause  shown. 


Affidavit  of  Walter  H.  Tilden. 

I.  I  am  a  member  of  St.  Clement’s  Church,  and  a  pew- 
holder  therein,  and  have  been  such  about  four  years.  I  have 
been  a  Vestryman  of  said  Church,  and  favored  Mr.  Walden 
while  he  was  the  Eector  of  the  Church,  and  now  favor  Dr. 
Batterson,  and  Dr.  Stewart ;  and,  so  far  as  I  know  the  senti¬ 
ments  of  the  congregation  of  said  Church,  I  believe  they  are 
by  a  lai’ge  majority  in  favor  of  the  present  Ministers. 

IT.  Some  time  ago,  I  had  a  conversation  with  Mr.  Morris, 
concerning  the  Ministers  of  St.  Clement's  Church.  He  said 
to  me,  that  as  the  Vestry  called  the  Ministers,  they  could 
discharge  them.  I  asked  him  what  would  be  the  consequence 
if  they  would  not  be  discharged,  when  he  said  they  could 
close  the  doors  of  the  Church,  and  thereby  keep  them  out. 


34 


lie  further  said,  that  he  would  rather  see  the  Church  closed 
than  kept  open  under  the  present  Ministers. 

III.  From  my  knowledge  of  the  sentiments  of  the  pew- 
holders  and  congregation  of  said  Church,  I  believe  that  a 
large  number  of  them  will  leave  said  Church,  if  the  acting: 
Vestry  of  the  Church  he  permitted  to  deprive  them  of  the 
Ministers  of  their  choice. 

Affidavit  of  C.  Gedney  King. 

I.  A  short  time  prior  to  the  Easter  election,  I  was  riding 
in  a  Walnut  street  car,  in  which  were  seated  Mr.  George  H. 
Allen  and  a  friend,  conversing  together  about  St.  Clement’s 
Church,  and  the  election  then  near  at  hand.  Mr.  Allen’s 
friend  asked  him  what  they  were  going  to  do  if  they  (the 
Vestry  party)  were  successful  at  the  election.  Mr.  Allen  said, 
that  rather  than  have  the  thing  go  on  as  it  was,  they  would 
close  the  Church ;  that  Dr.  Batterson  had  thrown  down  the 
gauntlet  and  they  would  take  it  up. 


Affidavit  of  Elias  L.  Boudinot. 

I.  I  am  a  member  of,  communicant,  and  constant  attend¬ 
ant  at  St.  Clement’s  Church,  and  have  been  a  pew-holder 
in  said  Church  for  the  two  years  last  past. 

II.  I  desire  that  the  connection  of  the  Rev.  Drs.  Batterson 
and  Stewart  with  the  said  Church  should  remain  unbroken, 
and  believe  such  to  be  the  wish  of  a  large  majority  of  the 
congregation. 

III.  I  believe  that  should  the  action  of  the  present 
(de  facto )  Vestry  be  sustained,  it  would  injure  the  financial 
affairs  of  said  Church,  and  would  depreciate  the  value  of 
pew-holdings. 


Affidavit  of  Charles  B.  Stewart. 


I.  I  am  a  member  of  St.  Clement’s  Church,  and  have  been 
a  constant  attendant  and  pew-holder  in  said  Church  for 


35 


the  great  part  of  the  time  since  the  Church  was  formed 
and  for  the  two  years  last  past. 

II.  I  desire  the  Eev.  Drs.  Batterson  and  Stewart 
should  retain  their  connection  with  said  Church,  and  I 
believe  that  a  majority  of  the  congregation  are  unwilling 
that  they  should  leave  it. 


Affidavit  of  M.  Morris  Marple. 

I.  I  am  a  pew-holder  and  attendant  at  St.  Clement’s 
Church,  and  have  been  such  for  the  last  two  years,  and 
am  not  a  member  of  any  other  church. 

II.  I  desire  that  the  connection  of  the  Rev.  Drs.  Batterson 
and  Stewart  with  said  Church  should  remain  unbroken,  and 
I  believe  that  to  be  the  desire  of  a  large  majority  of  the  con¬ 
gregation  of  said  Church. 

III.  I  believe  that  if  the  action  of  the  present  acting 
Vestry  be  sustained,  it  would  cause  many  of  the  members 
and  pew-liolders  to  leave  said  Church,  and  thereby  injure  the 
financial  affairs  thereof,  and  depreciate  the  value  of  the 
sittings. 


Affidavit  of  Henry  L.  Marple. 

I.  I  am  a  member,  communicant,  regular  attendant,  and 
pew-holder  of  St.  Clement’s  Church. 

II.  I  desire  that  the  connection  of  the  Rev.  Drs.  Batterson 
and  Stewart  with  said  Church  should  remain  unbroken,  and 
I  believe  that  to  be  the  desire  of  a  large  majority  of  the  con¬ 
gregation  of  said  Church. 

III.  I  believe  that  should  the  action  of  the  present  Vestry 
be  sustained,  it  would  injure  the  financial  affairs  of  said 
Church,  and  would  depreciate  the  value  of  sittings  therein. 


Affidavit  of  Richardson  L.  Wright,  Jr. 

I.  I  am  a  member,  communicant,  pew-holder  and  attend¬ 
ant  at  St.  Clement’s  Church,  and  favor  the  Rev.  Drs. 


36 


Batterson  and  Stewart  as  the  clergy  thereof,  and  believe 
that  a  large  majority  of  the  communicants  and  pew-holders 
of  said  Parish  and  Church  are  of  the  same  mind. 

II.  I  believe  that  if  the  action  of  the  acting  Yestry  be  not 
restrained,  large  numbers  of  the  congregation  and  pew- 
liolders  would  leave  the  Church,  to  the  great  detriment 
thereof,  financially  and  spiritually,  and  that  it  will  deter 
others  from  connecting  themselves  with  said  Church,  and 
thereby  render  it  impossible  to  dispose  of  my  holding  for  the 
remainder  of  my  term,  and  deprive  me  of  the  value  and 
benefit  thereof. 


Affidavit  of  John  L.  Kates. 

I.  I  am  a  pew-holder  in  St.  Clement’s  Church,  Philadel¬ 
phia,  and  have  been  for  ten  years. 

II.  I  attend  said  Church  frequently,  as  also  do  my  family, 
and  I  do  not  attend  any  other  Church  than  St.  Clement’s. 

III.  I  favor  Drs.  Batterson  and  Stewart  as  the  Ministers 
of  said  Church,  and  am  opposed  to  the  action  of  the  Yestry 
in  their  efforts  to  dismiss  said  Ministers ;  and  all  of  my 
family  are  of  the  same  opinion  in  this  respect. 


Affidavit  of  Henry  X.  Barnes. 

I.  I  am  a  member,  communicant,  and  regular  attendant 
at  St.  Clement’s  Church,  Philadelphia,  and  have  been  a  pew- 
holder  therein  for  the  last  five  years,  the  allegation  of  the 
defendants  in  their  answer  to  the  quo  icarranto ,  to  the  con¬ 
trary  thereof,  notwithstanding. 

II.  I  desire  Drs.  Batterson  and  Stewart  to  remain  in  the 
said  Church,  and  I  believe  that  a  large  majority  of  the  actual 
attendants,  communicants,  worshippers,  and  pew-holders  are 
of  the  same  way  of  thinking;  and  that  if  the  Acting  Yestry 
succeed  in  dismissing  said  Ministers,  a  large  majority  of  the 
worshippers  and  pew-holders  will  leave  said  Church,  to  the 
great  detriment  thereof,  spiritually  and  financially. 


/ 


ST 


Affidavit  of  Leivis  G.  Bull. 

I.  I  am  a  member  of  and  pew-holder  in  St.  Clement’s 
Church,  Philadelphia,  and  have  been  such  for  seven  years. 
I  have  regularly  paid  the  pew  rent  thereof,  and  have  the 
receipts  therefor,  some  of  them  being  issued  in  the  name  of 
Mr.  Lewis  G.  Bull,  and  some  in  the  name  of  Mrs.  Lewis  G-. 
Bull.  At  the  Easter  election,  1871,  I  was  told  that  the  pew 
stood  in  my  wife’s  name,  when  I  offered  to  vote  and  was 
refused  the  right ;  whereupon  I  brought  my  wife,  and  went 
with  her  and  voted. 

II.  I  and  my  wife  and  family  favor  Drs.  Batterson  and 
Stewart  as  the  Ministers  of  said  Church,  and  hope  that  they 
may  be  sustained  in  their  offices. 


Affidavit  of  Samuel  Ritchie. 

I  am  well  acquainted  with  Joseph  It.  Wilkins,  Jr.  He 
is  an  attendant  at  St.  Clement’s  Church.  He  lias  a  pew 
therein,  which  he  rents  from  the  Church,  and  has  held  about 
one  year.  Before  he  took  said  pew,  he  rented  one-half  of  a 
pew  from  Mrs.  Thaddeus  Norris,  and  paid  the  rent  therefor 
to  her. 

The  following  affidavits  were  read  on  the  part  of  the  de¬ 
fendants. 


Affidavit  of  John  Lambert. 

John  Lambert,  being  duly  affirmed,  deposes  and  says,  that 
he  is  instructed,  and  believes  none  of  the  complainants  are 
members  of  the  Hector,  Church  Wardens  and  Vestrymen  ot 
St.  Clement’s  Church,  in  the  City  of  Philadelphia,  a  body 
politic,  as  set  forth  in  said  bill.  Hot  one  of  them  owns,  or 
has  ever  owned,  a  pew  in  the  said  Church,  though  some  of 
them  are  members  of  the  Church,  entitled  to  vote.  The 

complainants,  with  the  exception  of  Hermon  G.  Batterson 

4 


38 


and  ~W.  II.  X.  Stewart,  and  Lewis  G.  Bull,  are  renters  of 
pews  and  sittings  in  said  Church.  The  said  Ilermon  G.  Bat- 
terson  and  W.  II.  X.  Stewart  do  not,  nor  does  either  of 
them,  rent  a  pew  or  sitting  in  said  Church,  and  neither  of 
them  has  ever  paid  for  or  held  a  pew  or  sitting  in  said 
Church.  The  said  Lewis  G.  Bull  is  not  the  owner  or  renter 
of  a  pew  or  sitting  in  said  Church,  and  his  name  does  not 
appear  on  the  Vestry  books.  Of  the  complainants,  J.  C. 
Morrison,  J.  Douglass  Brown,  William  A.  Rolin,  Stephen 
Fuguet,  M.  Morris  Marple,  Henry  X.  Barnes,  and  Walter  H. 
Tilden,  only,  were  competent  to  vote  for  Vestrymen  at  the 
election  held  on  Easter  Monday,  April  10th,  1871.  They 
only  of  the  complainants  appearing  by  the  Vestry  hooks  to 
have  paid  two  successive  years  immediately  preceding  the 
time  of  said  election,  for  a  pew  or  sitting  in  said  Church. 

That  John  Lambert,  Henry  Henderson,  Henry  Xorris,  and 
Charles  S.  Pancoast,  of  the  defendants,  are  each  pew  owners 
in  said  Church,  and  are  undoubtedly  members  of  said  Cor¬ 
poration.  That  Henry  C.  Thompson,  Henry  S.  Lowber,  P. 
Pemberton  Morris,  George  X.  Allen,  James  Dougherty, 
Francis  R.  Abbott,  Edward  Borhek,  and  T.  Franklin  Cooper, 
of  the  defendants,  are  renters  of  pews  or  sittings  in  said 
Church,  and  appear  by  the  Vestry  books  to  have  paid  two 
successive  years  immediately  preceding  the  time  of  said  elec¬ 
tion,  for  a  pew  or  sitting  in  said  Church,  as  do  also  the  said 
John  Lambert,  Henry  Xorris,  and  Charles  S.  Pancoast. 
The  said  defendants  now  exercise  the  office  of  Vestrymen, 
having,  as  they  believe,  been  regularly  and  duly  elected 
thereto  on  the  10th  day  of  April,  1871,  each  and  all  of  them 
being  by  the  Constitution  and  By-laws  of  said  Corporation 
duly  qualified  to  act  as  such  Vestrymen. 

The  statements  of  the  bill  as  to  the  issuing,  service,  and 
pendency  of  a  writ  of  quo  warranto  in  the  Supreme  Court, 
are  true. 

The  statements  of  the  bill  as  to  the* election  of  the  Rev.  II. 
G.  Batterson,  and  the  Rev.  W.  II.  X.  Stewart,  to  the  offices 
ot  Rector  and  Assistant  Minister  respectively,  and  as  to  the 
amount  of  salary  paid  them,  are  true. 

I  he  resolutions  recited  in  the  fourth  article  of  the  bill 


39 


were  presented  and  passed  as  therein  stated ;  and  the  state¬ 
ment  in  said  article  of  the  action  of  the  Rev.  II.  G.  Batterson 
and  the  Vestry  respectively,  is  true. 

The  deponent  further  says  that  Messrs.  Lambert  and  Mor¬ 
ris  laid  said  resolutions  before  the  ecclesiastical  authority  of 
the  said  Diocese  on  the  third  day  of  May,  1871,  and  that  the 
Right  Rev.  Vm.  Bacon  Stevens,  Bishop  of  the  Diocese  of 
Pennsylvania,  concurred  in  the  same  on  the  fourth  day  of 
May,  A.  D.  1871. 

This  deponent  further  says  that,  to  the  best  of  his  knowl¬ 
edge  and  belief,  the  defendants  are  now,  and  were  at  the 
time  of  their  action  upon  the  said  resolutions,  the  legal  repre¬ 
sentatives  and  duly  elected  Vestry  of  said  Church.  That 
their  action  upon  said  resolutions  was  regular,  canonical,  and 
lawful.  That  with  the  concurrence  of  the  ecclesiastical 
authority,  they  had  full  power  to  dissolve  the  connection 
between  the  Chnrch  and  its  Rector  and  Assistant  Minister, 
and  that  that  connection  is  dissolved  and  was  dissolved 
before  the  said  injunction  was  served,  in  accordance  with 
the  Constitution  and  Canons  of  the  Protestant  Episcopal 
Church  in  Pennsylvania,  and  in  the  United  States. 

That  the  defendants  never  intended,  as  alleged  in  the  bill, 
pending  their  efforts  to  obtain  for  their  action  the  concur¬ 
rence  of  the  ecclesiastical  authorities,  to  prevent,  by  acts  of 
force,  the  exercise  by  the  Rector  and  Assistant  Minister  of 
the  functions  of  their  respective  offices  within  St.  Clement’s 
Church. 

The  deponent  further  says  that  John  Lambert,  Henry 
Henderson,  Henry  Horns,  and  Charles  9.  Pancoast,  of  the 
defendants,  the  Executors  of  the  Estate  of  the  late  Wm. 
Savery  Wilson,  Dr.  J.  A.  McCrea,  George  W.  Hunter,  and 
Simon  Delbert  (the  four  last  named  not  taking  part  with  the 
complainants  in  these  proceedings),  are  the  only  parties  own¬ 
ing  any  pews  in  the  said  Church,  except  the  Corporation 
itself,  which  is  the  donee  of  the  said  W.  S.  Wilson,  of  thirty- 
six  pews.  And  that  the  said  Henry  Henderson  owns  eight, 
and  the  Estate  of  AV.  S.  AVilson  one  hundred  and  thirty-seven 
pews.  They  are  the  only  parties  interested  as  proprietors  in 
the  Church  property.  There  can  be  no  damage,  as  this  de- 


40 


ponent  believes,  to  the  leasing  value  of  complainants’  pews, 
as  they  own  none. 

The  deponent  further  says,  that  the  complainants,  Charles 
B.  Shillitoe,  Samuel  Ritchie,  Richardson  L.  Wright,  Jr., 
Henry  1ST.  Barnes,  J.  C.  Morrison,  John  Iluggard,  Stephen 
Fuguet,  Walter  H.  Tilden  and  C.  Gedney  King,  who  were 
renters  of  pews  up  to  April  3d,  1871,  have  not  paid  the  pew 
rent  due  in  advance  from  that  day,  and,  if  renters  of  pews, 
are  in  arrear  since  said  April  3d,  1871. 


Additional  Affidavit  of  John  Lambert. 

John  Lambert  further  avers,  that  the  Vestry  of  St.  Clem¬ 
ent’s  Church,  for  the  year  from  Easter  Monday,  1871,  to 
Easter  Monday,  1872,  is  composed  of  the  following  named 
persons,  to  wit :  John  Lambert,  Henry  S.  Lowber,  P.  Pem¬ 
berton  Morris,  Henry  Henderson,  Henry  Korris,  George  H. 
Allen,  Henry  C.  Thompson,  James  Dougherty,  Charles  S. 
Pancoast,  Francis  R.  Abbott,  Edward  Borhek,  and  T.  Frank¬ 
lin  Cooper.  And  that  the  Vestry  for  said  Church  for  the 
year  from  Easter  Monday,  1870,  to  Easter  Monday,  1871, 
was  composed  of  some  of  the  same  persons,  to  wit:  John 
Lambert,  Henry  S.  Lowber,  P.  Pemberton  Morris,  Henry 
Henderson,  Henry  Xorris,  George  FT.  Allen,  Henry  C.  Thomp¬ 
son,  James  Dougherty,  Charles  S.  Pancoast,  and  Francis  R. 
Abbott,  and  also  Walter  II.  Tilden  and  Charles  B.  Stewart, 
which  last  two  named  are  now  relators  in  the  suggestion  for 
the  writ  of  quo  warranto,  brought  before  the  Supreme  Court 
against  the  present  Vestry  of  said  St.  Clement's  Church. 

Deponent  further  says,  that  the  encumbrances  against  said 
Church,  are  a  ground  rent  of  fourteen  hundred  (1400)  dollars 
per  annum,  and  bonds  and  mortgages  amounting  to  ten 
thousand  (10,000)  dollars,  secured  on  the  Parish  building  ; 
together  with  sundry  indebtedness  not  secured  by  liens. 


Additional  Affidavit  of  John  Lambert. 

John  Lambert,  being  duly  a  ffirmed  according  to  law,  doth 
depose  and  say,  that  he  is  Accounting  Warden  of  St. 


Clement’s  Church,  in  the  City  of  Philadelphia,  and  as  such 
has  possession  of  the  Vestry  hooks. 

That  the  following  named  persons  are  owners  and  renters 
of  pews  in  said  Church,  from  the  dates  set  opposite  their 
respective  names.  (Here  follows  a  list  of  96  names.) 

And  the  deponent  saith  that  the  above  statements,  taken 
by  him  from  the  Vestry  books,  are  true  to  the  best  of  his 
knowledge  and  belief. 

Mr.  Hanson  then  addressed  the  Court  on  behalf  of  the 
plaintiffs.  He  said — 

This  case  is  peculiai'ly  free  from  a  dispute  as  to  the  facts, 
and  so  far  as  they  affect  the  question  now  before  the  Court 
in  its  strictly  legal  character,  they  are  these. 

On  the  10th  April,  1871,  the  regular  annual  election  for  the 
Vestrymen  of  St.  Clement’s  Church  was  held.  The  result  was 
a  declaration  by  the  judges  of  election,  that  Mr.  Lambert 
and  others  (the  defendants  here)  were  chosen  to  be  Vestrymen 
from  Easter  Monday,  1871,  to  Easter  Monday,  1872,  and 
those  gentlemen  accordingly  entered  upon  the  performance  of 
their  duties.  On  the  18tlr  April,  1871,  Mr.  Tilden  and  others, 
who  had  contested  with  Mr.  Lambert  and  others,  in  the  elec¬ 
tion  to  the  office  of  Vestrymen,  tiled  in  the  Supreme  Court  a 
suggestion  for  the  writ  of  quo  warranto;  the  writ  Avas  allowed 
and  made  returnable  to  the  first  Monday  of  May  following. 
The  suggestion  alleged  that  Mr.  Lambert  and  others  were 
not  duly  and  lawfully  elected,  and  charged  that  votes  of 
those  who  under  the  charter  of  the  Church  were  not  legal 
voters,  were  received  for  Mr.  Lambert  and  those  acting  with 
him,  and  that  the  votes  of  others  (among  them  the  Rector 
and  the  Assistant  Minister)  who  offered  to  vote  for  Mr.  Tilden 
and  others,  and  who  were  legally  qualified  voters,  were  re¬ 
jected ;  and  that  had  the  first  class  of  votes  been  rejected, 
and  the  second  class  i-eceived,  Mr.  Tilden  and  the  plaintiffs 
in  the  quo  warranto  proceedings,  would  have  been  the  right¬ 
fully  elected  Vestrymen.  The  proceedings  in  the  quo  war¬ 
ranto  are  still  pending.  At  a  meeting  of  the  acting  Vestry, 
held  3d  May,  1871,  Mr.  Thompson  presented  to  the  meeting 
a  series  of  resolutions,  proposing  with,  the  concurrence  of  the 


42 


Ecclesiastical  authority  of  the  Diocese,  to  dismiss  the  Rector 
and  the  Assistant  Minister  from  their  offices.  Iso  reasons  for 
this  course  were  assigned.  The  Rector,  who  presided,  declined 
to  entertain  any  action  upon  the  resolutions,  on  the  ground 
that  the  attempted  course  was  not  within  the  scope  of  the 
Vestry’s  authority,  and  he  refused  to  entertain  an  appeal 
from  his  decision.  The  acting  Secretary  of  the  meeting,  at 
the  request  of  one  of  the  Vestrymen,  submitted  the  resolu¬ 
tions  for  the  action  of  the  Vestry  ;  and  disregarding  the  pres¬ 
ence  of  the  Rector  and  without  his  action,  the  resolutions 
were  adopted.  The  meeting  adjourned  to  meet  on  Saturday, 
6th  May,  1871. 

On  the  day  following  that  of  the  Vestry  meeting,  that  is, 
4th  May,  the  Rector  and  others,  parties  plaintiff,  filed  their 
.  bill  praying  for  an  injunction  to  restrain  the  defendants  from 
interfering  with  the  exercise  by  the  Rector  and  Assistant  Min¬ 
ister  of  their  offices  in  St.  Clement’s  Church,  uutil  a  canonical 
dissolution  of  the  connection  existing  between  them  and  the 
congregation  shall  have  taken  place  in  accordance  with  the 
canons  of  the  Protestant  Episcopal  Church ;  and  under  the 
new  equity  rules  an  ex  parte  injunction  issued.  On  the  same 
day,  May  4th,  a  notification  of  this  action  of  the  Rector  and 
others  was  sent  to  the  Bishop  of  the  Diocese. 

By  the  affidavits  filed  on  behalf  of  the  present  defendants, 
it  appears  that  the  Bishop  -  on  the  day  following  the  Vestry 
meeting,  and  on  the  very  day  on  which  the  injunction  issued, 
and  notice  of  its  exit  was  sent  to  him — with  a  haste  that 
counsel  for  defendants  may  show  to  have  been  well  con¬ 
sidered,  concurred  in  the  action  of  the  Vestry;  although, 
neither  by  the  Vestry  nor  by  any  one,  had  there  been  a  pre¬ 
sentment  against  either  the  Rector  or  Assistant  Minister; 
neither  a  hearing  nor  a  trial. 

Not  only  have  the  defendants  sought  to  do  that  which 
they  had  no  lawful  power  to  do,  but  their  action  has  been 
that  of  a  body  whose  very  existence  the  Commonwealth  had 
called  in  question,  seeking,  in  disregard  of  the  wishes  of  their 
constituents,  of  the  wishes  of  more  than  two-thirds  of  the 
communicants  of  the  Church,  and  of  those  who  occupy 
pews  and  sittings,  as  the  affidavits  show,  to  sever  the  con- 


43 


nection  between  the  Church  and  its  Rector  and  Assistant 
Minister ;  and  this  without  a  cause  alleged  or  a  charge  made. 

The  aid  of  equity  is  invoked  on.  two  grounds. 

I.  To  protect  legal  rights  to  property  from  irreparable  in¬ 
jury  pending  litigation.  This  is  part  of  the  original  and 
proper  office  of  a  court  of  equity. 

II.  To  restrain  an  act  wholly  illegal,  and  from  which,  if 
not  restrained,  irremediable  damage  will  flow. 

The  legal  rights  alluded  to,  and  which  the  Rector  and  As¬ 
sistant  Minister  have,  are  1.  The  right  to  their  salaries.  2. 
The  right  to  pursue  their  avocations.  This  is  a  property, 
an  estate  in  their  professions.  In  Cummings  v.  State  of  Mis¬ 
souri ,  4  Wall.  277-320,  in  reply  to  the  argument  of  counsel 
for  the  State,  that  to  deprive  one  of  life,  liberty  and  property, 
was  punishment,  but  to  take  from  one  a  right  to  exercise  a 
vocation  was  not,  Mr.  Justice  Field,  in  showing  the  fallacy 
of  this,  said,  “ITe  does  not  include  under  property  those 
“  estates  which  one  may  acquire  in  professions,  though  they 
“  are  often  the  source  of  the  highest  endowments  and  honors.” 

The  legal  rights  of  those  having  sittings  and  rented  pews, 
are  1.  The  enjojunent  of  the  right  to  meet  and  hear  the 
teachings  for  which  they  have  paid.  2.  The  right  to  transfer 
their  sittings  for  a  consideration,  which  would  be  barred  if  the 
Rector  is  dismissed.  The  character  of  a  pew-right  is  described 
in  Church  v.  Wells’  Executors ,  12  Harris  (24  Penna.),  249. 
3.  The  right  to  require  the  body  to  whom  is  delegated  the 
power  to  collect  and  apply  funds,  that  such  body  shall  apply 
said  funds  in  accordance  with  the  trust  accepted.  “  It  ap- 
“  pears  that  the  funds  of  the  institution  are  under  the  con- 
“  trol  of  the  governing  body,  and  the  defendants  have  prac- 
“  tically  the  power  of  withholding  from  the  plaintiff  the 
“  emolument  assigned  to  and  accepted  by  him.  This  consti- 
“  tutes  a  trust  which  they  have  to  perform,  and  which  they 
“  are  hound  to  perform  in  favor  of  the  person  who  fills  the 
“  office  of  pastor,  and  accusing  the  plaintiff  to  he  wrongfully 
“  deposed.  I  am  of  opinion,  the  relation  of  trustee  and 
“  cestui  que  trust  does  exist,  &c.”  Eauguars  v.  Rivaz ,  28 
Beavan,  233-247. 

In  order  to  obtain  protection  of  legal  rights  pending  liti- 


44 


gation,  the  plaintiffs  must  show  1.  That  there  is  a  real  ques¬ 
tion  in  litigation.  2.  That  there  will  be  irreparable  injury. 
3.  That  the  weight  of  inconvenience  (in  balancing  between 
interfering  and  not  interfering)  is  greatly  in  favor  of  plaintiffs. 

In  the  Great  Western  Railway  Co.  v.  The  Birmingham  and 
Oxford  Junction  Co .,  2  Phillips,  597-602,  Lord  Chancellor  Cot- 
tenham  said:  “  It  is  certain  that  the  Court  will,  in  many 
“  cases,  interfere  and  preserve  property  in  status  quo  during  the 
“  pendency  of  suit  in  which  the  rights  to  it  are  to  be  decided, 
“  and  that  without  expressing  and  often  without  having  the 
“  means  of  forming  any  opinion  as  to  such  rights.”  *  *  * 
“  In  order  to  support  an  injunction  for  such  purpose  it  is  not 
“  necessary  for  the  Court  to  decide  upon  the  merits  in  favor 
“  of  the  plaintiffs.  If,  then,  this  bill  states  a  substantial 
“  question  between  the  parties,  the  title  to  the  injunction 
*  “  may  be  good,  although  the  title  to  the  relief  prayed 
“  may  ultimately  fail.”  In  Daly  v.  Archbishop  of  Dublin , 
Flanegan  &  Kelly's  Kep.  263  (Kolls  Court),  the  Master  of 
the  Polls  granted  an  injunction  to  restrain  the  Ai’chbishop 
from  collating  by  way  of  lapse  to  a  deanery,  pending  a  suit 
in  the  Consistorial  Court  respecting  the  presentment  by  the 
chapter.  The  Mammoth  Vein  Coal  Co.’s  Appeal ,  4  P.  F.  Smith, 
183  (54  Penna.),  although  not  a  case  for  an  injunction,  yet 
the  principle  is  stated  by  Thompson,  J.  “  It  ought  not  to 
“  be  forgotten  that  a  preliminary  injunction  is  a  restrictive 
u  or  prohibitory  process  designed  to  compel  the  party  against 
“  whom  it  is  granted  to  maintain  his  status  merely  until  the 
“  matters  in  dispute  shall,  by  due  process  of  the  Courts,  be  de- 
“  termined ;  the  sole  foundation  for  such  an  order  being,  in 
u  addition  to  cases  of  the  invasion  of  unquestioned  rights, 
“  the  prevention  of  irreparable  mischief  or  injury.” 

Irreparable  injury.  This  must  be  a  grievous  or  material 
injury,  and  not  adequately  reparable  by  damages  at  law.  In 
Mammoth  Vein  Coal  Cods  Appeal ,  such  injury  is  said  to  be 
“  injurious  consequences  which  cannot  be  repaired  under  any 
“  standard  of  compensation.”  One  that  cannot  he  readily 
estimated  in  damages.  A  dismissal  may  render  exercise  of 
the  Hector's  avocation  doubtful  and  uncertain.  It  may 
break  up  the  Church,  and  do  an  injury  to  those  who  rented 


45 


sittings  on  the  faith  of  Mr.  Batterson’s  Rectorship,  which 
cannot  he  estimated. 

Weight  of  inconvenience.  The  leading  consideration  is 
as  to  the  comparative  mischief  to  the  parties.  If,  upon  the 
balance  of  inconvenience,  it  appears  that  greater  damage 
would  arise  to  the  defendants  by  granting  the  injunction  in 
the  event  of  its  turning  out  afterwards  to  have  been  wrongly 
granted,  than  to  the  plaintiff  from  withholding  it,  in  the 
event  of  the  legal  right  proving  to  be  in  his  favor,  the  injunc¬ 
tion  will  not  be  granted.  If  it  appear  that  greater  damage 
would  arise  to  the  plaintiff  by  withholding  the  injunction  in 
the  event  of  the  legal  right  proving  to  be  in  his  favor,  than 
to  the  defendant  by  granting  the  injunction,  in  tlie  event  of 
the  injunction  proving  afterwards  to  have  been  wrongly 
granted,  the  injunction  will  issue. 

The  litigation  pending  under  the  quo  warranto  is  a  chal¬ 
lenge  and  warning  to  the  defendant,  and  the  quo  warranto  is 
itself  a  cautionary  writ,  and  should  need  no  injunction  to 
aid  it. 

II.  To  restrain  the  wholly  unlawful .  invasion  of  aright. 
The  proof  is  that  the  Ministers  are  regularly  settled  in  the 
Church,  with  a  perfect  right  to  the  salaries  agreed  upon. 
The  action  of  the  Vestry  is  unlawful,  1.  Because  the  meet¬ 
ing  at  which  the  resolutions  were  passed  was  not  held  in 
accordance  with  the  provisions  of  the  By-laws.  2d.  Because 
any  action  of  the  Vestry  of  St.  Clement’s  Church  to  dismiss 
a  Minister  is  ultra  vires  and  void.  3.  Because  the  Vestry 
have  sought  to  disfranchise  a  member  of  the  Corporation 
without  a  charge,  a  summons  or  a  hearing. 

The  meeting  was  irregular.  By  sect.  5  of  art.  2  of  the 
By-laws,  the  Rector  shall,  if  present,  preside  at  the  meetings 
of  the  Vestry.  The  Vestry  is  composed  of  twelve  lay  mem¬ 
bers.  A  quorum  consists  of  five.  Thus  its  meetings  are 
(when  the  Rector  is  present)  composed  of  integral  parts, 
clerical  and  lay.  Each  part  derives  its  right  from  a  different 
source, — the  Rector,  from  the  action  of  the  Vestry  and  the 
Bishop  ;  the  Vestry,  from  election  by  members  of  the  Church. 
The  Rector  is  such  until  canonically  dismissed.  The  Vestry 


46 


change  from  year  to  year.  In  Wilson  v.  Me  Math,  3  Philli- 
more,  67-81  (Peculiars  Court  of  Canterbury,  1819),  it  was 
held,  that  the  Rector  is  not  a  mere  individual  of  the  Vestry. 
He  is  an  integral  part  of  the  parish.  Sir  John  Hiclioll  said — 
“  The  minister  is  not,  in  consideration  of  law,  a  mere  indi- 
“  vidual  of  the  Vestry,  as  has  been  contended,  nor  is  he  in 
“  any  instance  so  described.  On  the  contrary,  he  is  always 
“  described  as  the  first  and  as  an  integral  part  of  the  parish. 
“  The  form  of  citing  a  parish  proves  this  position,  namely, 
“  as  ‘  the  minister ,  church  warden,  and  parishioners,’  he  being 
“  specially  named.  Such  is  the  legal  description  of  a  parish 
“  in  all  formal  process.”  In  King  v.  Miller,  6  T.  Rep.  268-278, 
Lord  Kenyon,  Cli.  J.,  said:  “This  proposition  seems  to  he 
“  now  clearly  established ;  that  when  there  is  a  definite 
“  body  in  a  corporation,  a  majority  of  that  definite  body 
“  must  not  only  exist  at  the  time  when  any  act  is  to  he  done 
“  by  them,  hut  a  majority  of  that  body  must  attend  the 
“  assembly  when  such  act  is  done.”  In  King  v.  Williams, 
2  Maule  &  Selwyn,  141,  Lord  Ellenborough,  Ch.  J.,  said,  it 
is  necessary  that  a  presiding  officer,  who  by  the  charter  of  a 
borough  forms  an  integral  part  of  an  elective  assembly, 
should  be  present  up  to  the  time  when  the  election  is  com¬ 
pleted,  and  an  election  cannot  be  proceeded  in  during  his 
absence,  although  he  should  improperly  absent  himself.  In 
the  Case  of  St.  Mary’s  Church ,  7  S.  &  R.  517-538,  a  religious 
corporation,  consisting  of  eight  lay  and  three  clerical  mem¬ 
bers,  the  lay  members  were  in  favor  of  a  change  of  charter, 
and  the  clerical  members  were  not.  At  the  meeting  for 
alterations,  there  were  present  seven  lay  and  one  clerical 
member.  Held  to  be  an  unlawful  meeting,  because  a  majority 
of  the  integral  parts  of  the  corporation  were-  not  present. 

2.  Because  the  action  of  the  Vestry  is  ultra  vires  and 
void.  Although  this  Court  will  not  re-judge  the  judgment  of  a 
Vestry  ( forum  domesticum )  if  it  lias  acted  within  the  scope  of  its 
authority,  yet  the  Court  will  always  see  whether  such  tribu¬ 
nals  have  so  acted.  In  King  v.  Bishop  of  Ely,  2  Term  Rep. 
290-336,  Ashliurst,  J.,  said:  “If  this  be  the  true  construc- 
“  tion  of  the  statute,  the  right  of  nomination  was  an  object 
“  of  the  Bishop’s  visitorial  power.  Therefore,  our  opinion  in 


47 


“  this  case  does  not  militate  against  any  of  the  cases  cited 
“  at  the  bar ;  those  cases  show  that  the  acts  of  a  visitor, 
“  whether  right  or  wrong,  are  not  to  he  examined  in  the 
“  courts  of  law,  but  those  are  cases  where  he  has  acted  within 
“  his  jurisdiction,  and  they  proceed  upon  this  principle  that 
“  he  is  the  judge  whom  the  founder  has  thought  fit  to  ap- 
“  point.”  In  Long  v.  Bishop  of  Cape  Town ,  1  Moore,  Privy 
Council  Cases,  (H.  S.)  pg.  411,  pg.  461,  Lord  Kingsdown,  said  : 
“  When  any  religious  or  other  lawful  association  has  not 
“  only  agreed  on  the  terms  of  its  union,  hut  has  also  consti- 
“  tuted  a  tribunal  to  determine  whether  the  rules  of  the  as- 
“  sociation  have  been  violated  by  any  of  its  members  or  not, 
“  and  what  shall  be  the  consequence  of  such  violation  ;  the 
“  decision  of  such  tribunal  will  he  binding  when  it  has  acted 
“  within  the  scope  of  its  authority  ;  has  observed  such  forms  as 
“  the  rules  require,  if  any  forms  he  prescribed,  and  if  not, 
“  has  proceeded  in  a  manner  consistent  with  the  principles  of 
“  justice.  In  such  cases  the  tribunals  so  constituted  are 
“  not  in  any  sense  courts  ;  they  derive  no  authority  from 
“  the  Crown ;  they  have  no  power  of  their  own  to  enforce 
“  their  sentences ;  they  must  apply  for  that  purpose  to  the 
“  courts  established  by  law,  and  such  courts  will  give  effect 
“  to  their  decisions  as  they  give  effect  to  the  decisions  of 
“  arbitrators,  whose  jurisdiction  rests  entirely  upon  the 
“  agreement  of  the  parties.”  See  also  In  re  Bishop  of  Natal, 
3  Moore,  P.  C.  C.  (H.  S.)  115  ;  Murray  v.  Burgess ,  4  Moore, 
P.  C.  C.  (1ST.  S.)  250.  In  Dauguars  v.  Bivaz,  28  Beavan,  233, 
Sir  John  Romilly  inquired  into  the  right  of  a  governing  body 
to  dismiss  a  pastor  from  his  office  in  the  French  Protestant 
Church  of  London,  and  issued  an  injunction  to  prevent  their 
doing  it.  In  Com.  v.  The  German  Soc .,  3  Harris, (15  Penna.)  251, 
it  is  said  the  courts  will  preserve  private  tribunals  within  the 
line  of  their  authority,  and  examine  whether  they  have  juris¬ 
diction  of  what  they  attempt  to  adjudicate,  (explaining  Com. 
v.  Ben.  Soc.,  8  W.  &  S.  247  ;  and  Torarri  v.  Ben.  Soc.  4  Barr, 
(Pa.)  519.)  In  McGinnis  v.  Watson,  5  Wright,  (41  Pa.)  and 
Sutter  v.  Trustees,  6  Wright,  503,  the  Court  examined  to  see 
if  the  governing  bodies  of  churches  had  exceeded  their  powers. 
So  also  in  Smith  v.  Nelson,  18  Vermont,  511,549,  566,  by  Ch. 


48 


Williams ;  Watson  v.  Avery ,  2  Bush,  (Ky.)  332, 348.  And  this 
Court  in  Leech  v.  Board  of  Brokers ,  2  Brewster,  571,  examined 
into  the  power  of  the  Philadelphia  Board  of  Brokers  to  expel 
a  member,  and  prevented  them  from  doing  it  in  that  case. 

The  Court,  therefore,  having  upon  it  the  duty  to  examine 
if  the  Vestry  have  acted  within  the  scope  of  their  authority, 
where  exists  the  authority  to  disfranchise  a  member  of  the 
Corporation?  In  Angel  &  Ames  on  Corp.  §  432,  it  is  said: 
“  The  power  of  disfranchisement  and  a  motion,  unless  it  has 
“  been  confided  to  a  particular  person  or  class,  is  to  be  exer- 
“  cised  by  the  corporation  at  large,  and  not  by  the  person  or 
“class  in  whom  the  right  of  appointing  or  admitting  is 
“  vested.”  And  in  pleading  disfranchisement,  if  the  au¬ 
thority  is  not  shown  in  a  class,  it  will  be  construed  to  be  in 
the  body  at  large. 

In  Green  v.  The  Church ,  1  Sergeant  &  Rawle,  254,  the 
return  stated  a  member  was  expelled  by  a  select  number. 
The  court  said :  “  It  is  not  shown  by  what  authority  they 
“  proceeded  to  try  and  expel  a  member.  This  is  a  radical 
“  defect,  for  the  power  of  expulsion  must  belong  to  the 
“  society  at  large,  unless  by  the  fundamental  article  or  some 
“by-law  founded  in  these  articles,  it  is  transferred  to  a 
“  select  number.”  And  to  the  same  effect  is  Judge  Williams’ 
charge  to  the  jury  in  Gordon  v.  Williams ,  case  of  the  First 
Reformed  Presbyterian  Congregation  in  the  City  of  Philadel¬ 
phia,  in  the  Supreme  Court  of  Pennsylvania,  reported  in  the 
Legal  Gazette  of  Philadelphia,  April  14th,  1871. 

Nowhere  in  the  Charter  or  By-laws  does  there  exist  author¬ 
ity  in  a  Vestry  to  dissolve  the  connection  ;  neither  in  the  Can¬ 
ons  of  the  Diocese  of  Pennsylvania,  nor  in  those  of  the  Church 
in  the  United  States.  The  only  canon  on  the  subject  is  the  4tli, 
Title  2  of  Discipline,  in  the  Digest  of  Canons  in  the  Church, 
imposing  penalties.  It  does  not  give  expressly  the  right  to 
any  one;  it  contemplates  two  kinds  of  dissolution  of  the  re¬ 
lation — an  irregular  one,  and  a  regular  and  canonical  one. 
If  the  Minister  be  dismissed  by  the  Parish  or  Church,  without 
concurrence,  then  a  penalty  is  imposed.  If  the  Ecclesiastical 
authority  concurs,  then  the  penalty  is  remitted ;  but  the  act 
is  not  made  regular  or  canonical  as  between  the  Minister  and 


49 


congregation.  The  Vestry  is  nowhere  mentioned  in  the  can¬ 
non,  or  anywhere  in  the  prayer  hook,  except  in  parenthesis, 
as  a  substitute  for  the  Church  Wardens  in  the  office  for  the 
institution  of  ministers.  The  canon  was  enacted  to  impose 
a  penalty  upon  an  act  which  the  congregation  might  actually 
hut  not  rightfully  do ;  which  penalty  may  be  remitted  by 
the  Ecclesiastical  authority.  But  the  dismissal  is  none  the 
less  an  offence  ;  although  the  penalty  be  afterwards  forgiven. 
It  is  a  familiar  rule  of  law,  that  a  statute  which  imposes  a 
penalty  is  intended  as  a  prohibition  of  the  act. 

The  canonical  dissolution  is  by  consent,  sanctioned  by  the 
Ecclesiastical  authority,  or  by  presentment,  trial  and  punish¬ 
ment  under  Canon  2,  Title  2  of  Discipline. 

3.  Because  the  vestry  have  sought  to  disfranchise  the 
Rector,  &c.,  without  a  hearing  or  trial. 

In  Bagg’s  Case ,  11  Coke’s  Rep.  93-98,  Ring’s  Bench,  13 
James,  1,  for  a  mandamus,  it  was  resolved,  “and  although 
“  they  have  lawful  authority  either  by  charter  or  prescription 
“  to  remove  any  one  from  the  freedom,  and  that  they  have 
“just  cause  to  remove  him,  yet  it  appears  by  the  return  that 
“  they  have  proceeded  against  him  without  hearing  him  an- 
“  swer  to  what  was  objected,  or  that  he  was  not  reasonably 
“  warned.  Such  removal  is  void,  will  and  shall  not  bind  the 
“  party  quia  quicunque  aliquid  statuerit  parte  inaudita  altera , 
“  aequum  licet  statuerit  haud  aequus  fuerit ,  and  such  removal 
“  is  against  justice  and  right.”  So  in  King  v.  Gaskin ,  8 
Term  Rep.  209,  A.  D.  1799,  a  return  to  a  mandamus  to  re¬ 
store,  was  held  insufficient,  because  it  did  not  state  that  the 
party  had  been  summoned  to  answer  the  charge  before  he 
was  removed.  Kenyon,  C.  J.,  said  :  “  If  we  were  to  hold  this 
“  return  to  be  sufficient,  we  should  decide  contrary  to  one  of 
“  the  first  principles  of  justice,  audi  alteram  partem  *  *  * 

“  It  is  to  be  found  at  the  head  of  our  criminal  law,  that 
“  every  man  ought  to  have  an  opportunity  of  being  heard 
“before  he  is  condemned,  and  I  should  tremble  at  the  con- 
“  sequences  orf  giving  way  to  this  principle.  I  have  no  doubt 
“  that  Dr.  Gaskin  has  acted,  on  this  occasion,  from  the  best 
“  motives,  and  notwithstanding  our  decision,  he  will  be  per- 


50 


“  fectly  justified  in  renewing  liis  accusation  against  this 
“person,  and  in  removing  him  from  his  office  in  a  more 
“  formal  manner  if  the  charge  he  true.”  Doe  on  Demise 
v.  Gartham ,  8  Moore’s  Rep.  3G8,  was  an  ejectment,  A.  D.  1823. 
The  visitors  of  a  grammar  school,  who  had  dismissed  the 
schoolmaster  for  misconduct  or  breach  of  regulations  of  the 
deed  of  endowment,  could  not  recover  possession  of  the  school 
house  against  the  schoolmaster,  because  they  had  not  legally 
determined  the  schoolmaster’s  interest,  by  first  summoning 
him,  that  he  might  be  heard  in  his  own  defence.  Queen  v. 
Smith,  3  Queen’s  Bench,  614,  A.  D.  1844,  was  a  mandamus 
to  restore  one  to  his  office  as  clerk  of  the  parish.  The  re¬ 
turn  was  that  the  clerk  had  misbehaved  himself  and  had 
been  drunk  within  the  view  of  the  vicar  ;  to  which  it  was 
pleaded  that  the  clerk  had  not  been  summoned  to  answer  a 
charge  against  him.  And  the  return  was  held  bad  for  not 
showing  that  the  clerk  had  been  summoned.  In  Jones  v. 
Wright ,  47  English  Common  Law  Rep.  262,  Queen’s  Bench, 
A.  I).  1844,  Lord  Denman,  C.  J.,  said:  “No  proceeding  in 
“  the  nature  of  a  judicial  proceeding  can  be  valid  unless  the 
“  party  charged  is  told  that  he  is  so  charged,  is  called  on  to 
“  answer  the  charge,  and  is  warned  of  the  consequences  of 
“refusing  to  do  so.”  In  Commonwealth  v.  The  Pennsylvania 
Beneficial  Institution ,  2  Sergeant  &  Rawle,  141,  a  member  of 
a  society,  being  in  arrears  three  months,  under  the  charter, 
which  provided,  “  that  should  any  member  neglect  to  pay 
“his  arrearages  for  three  months,  he  shall  be  expelled,”  was 
struck  off  the  society  roll,  and  the  court  held  the  act  was 
illegal ;  that  there  should  be  a  charge  and  an  opportunity  of 
being  heard.  “  No  man  should  be  expelled  in  his  absence, 
without  notice,”  said  C.  J.  Tilghman. 

The  resolutions  of  the  Vestry  dismissing  the  Rector  and 
Assistant  Minister,  were  passed  at  a  Vestry  meeting,  which, 
in  omitting  the  Rector  as  a  part  of  it,  was  constituted  in 
disregard  of  the  Charter  and  By-laws  of  St.  Clement’s 
Church.  The  Vestry  (or  as  it  would  be  called  in  England 
the  Select  Vestry),  have  nowhere  granted  to  them  by  the 
Charter  or  the  Canons  of  the  Church,  the  power  of  dismissing 
the  Rector  which  they  sought  to  exercise,  and  it  does  not 


51 


reside  in  them  vertuti  officii;  admitting  solely  for  the  pur¬ 
pose  of  argument,  they  had  this  power  of  disfranchisement, 
this  quasi  judicial  power,  then  they  have  exercised  it  in  a 
manner  which  would  of  itself  make  their  acts  void  ;  what 
has  been  done  was  in  violation  of  the  very  conception  of  law 
and  judgment,  and  in  disregard  of  the  plainest  dictates  of 
the  English  and  American  common  law. 

The  wrongful  act  affects  well  defined  rights  of  property 
so  injuriously,  that  it  cannot  he  redressed  by  the  machinery 
of  the  courts  of  law;  it  calls  for  prevention;  the  injury  would 
be  irreparable  in  the  judgment  of  a  Chancellor;  and  it 
is  clear  that  greater  damage  would  befall  the  plaintiffs, 
certainly  the  Rector  and  Assistant  Minister,  by  withholding 
the  injunction,  than  to  the  defendants  by  continuing  it. 

The  Court  is  therefore  asked  to  continue  the  injunction 
heretofore  granted  ex  parte. 

Mr.  Biddle,  on  behalf  of  the  defendants,  said — It  is  to 
he  deeply  regretted  that  this  case  has  come  before  the 
Court.  It  has  been  ardently  desired  that  the  difficulty  would 
be  settled  by  arbitration  outside.  The  present  year  presents 
the  first  time  within  the  past  half  century,  that  members  of 
this  denomination  have  had  recourse  to  the  civil  tribunals. 
It  has  been  the  solace  of  the  persons  of  that  faith,  that  they 
have  been  able  to  keep  their  troubles  out  of  courts  of  justice. 
The  parties  to  the  complaint  have  altogether  misjudged  their 
remedy.  The  Ministers  can  leave  at  any  time  they  see 
proper,  and  the  Vestry  can  dispense  with  their  services  at 
any  time  it  is  their  pleasure  to  do  so.  And  if  they  think  the 
Ministers  have  been  wronged,  they  have  their  remedy  in  a 
civil  tribunal,  to  bring  a  suit  for  the  i-ecovei’y  of  their  salary. 
They  should  resort  to  the  courts  of  law,  for  their  salary,  not 
to  a  court  of  equity  for  an  injunction.  They  have  an 
adequate  remedy  at  law.  This  dismission  is  but  the  sever¬ 
ance  of  a  connection  that  is  without  terms  as  to  time,  and 
it  cannot  be  pretended  that  when  they  have  an  action  at 
law,  they  can  by  injunction  tie  up  the  hands  of  the  Vestry, 
and  continue  these  disorders  in  the  Church  for  another  year. 
I  recognize  in  the  fullest  sense  the  right  of  men  to  worship 


according  to  their  consciences,  bnt  it  is  most  extraordinary 
that  persons  becoming  members  of  a  Church,  accepting  its 
rules  and  formulas,  should,  the  moment  they  become  so 
associated,  act  contrary  to  those  rules  and  formulas,  and 
when  trouble  arises,  as  in  this  case,  say  we  are  martyrs  to 
the  cause  of  faith.”  If  they  do  not  like  the  formulas,  there 
is  a  very  simple  thing  for  them  to  do — let  them  depart  in 
peace. 

The  pendency  of  the  quo  icarranto  ought  not  to  deprive 
the  Vestry  of  any  of  its  powers  ;  they  are  the  de  fa-do  Vestry, 
to  perform  all  the  duties  of  the  office  fully  and  not  by  halves. 
This  was  decided  in  the  case  of  the  Trustees  v.  Hill,  6  Cowen, 
page  23.  In  that  case  de  facto  officers  commenced  and 
maintained  an  action  against  a  party  who  objected  that 
they  were  de  facto  officers  only.  But  the  objection  was 
overruled. 

By  the  Constitution  and  Canons  of  the  Church,  the  Vestry 
is  the  ruling  body,  the  organ  of  the  Church,  and  they  elect 
the  delegates  to  the  Diocesan  Convention.  The  Church  acts 
only  by  the  Vestry. 

The  affidavits  of  a  majority  of  the  congregation  ought  not 
to  have  any  weight  here.  The  question  is,  what  is  the  power 
of  the  Vestry,  and  are  they  acting  within  the  scope  of  their 
authority  ?  This  question  of  dismissal  was  passed  upon  at 
the  election  for  Vestrymen,  and  now  when  they  are  success¬ 
ful,  an  effort  is  made  to  prevent  them  doing  the  very  thing 
they  were  elected  to  do.  The  proceedings  by  quo  warranto 
were  intended  for  delay,  and  this  Court  ought  not  to  favor 
that.  The  writ  was  filed  in  the  Supreme  Court,  and  made 
returnable  to  May,  a  time  when  it  is  well  known  that  that 
Court  would  be  away  from  this  cit}%  and  sitting  in  another 
district.  An  issue  of  fact  is  raised  in  it  which  cannot  be 
tried  until  next  winter,  although  the  real  issue  is  one  of  law. 

The  Vestry  is  a  body  to  perform  its  duties  fully  and  not 
by  halves.  They  are  to  do  everything  or  nothing.  AVlio  is 
to  keep  the  Church  in  repair,  if  the  Vestry  can  be  tied  up  by 
an  injunction,  or  pay  interest  on  the  incumbrances,  and  for 
the  music  ? 


53 


They  are  the  old  Vestry.  They  have  given  their  means  to 
support  it  before  the  innovations  were  made. 

The  power  to  elect  the  Rector,  includes  the  power  to  dis¬ 
miss  him.  The  Vestry  elects  him  as  will  be  seen  by  the 
Charter,  Art.  V.  and  By-laws,  Art.  III.  A  power  of  dismissal 
is  given  by  Title  II.,  Canon  4  of  the  Digest  of  the  Canons. 
The  title  of  this  canon  is,  “  Of  the  dissolution  of  a  pastoral 
connection.”  It  is  always  proper  to  resort  to  the  title  of  a 
statute  for  aid  in  construing  it.  This  canon  treats  of  the 
dissolution — the  severance  of  the  relation.  Dismission  is  as 
wide  as  the  poles  from  degradation,  or  suspension.  This  last 
punishment  is  inflicted  when  a  Minister  has  been  tried  and 
convicted.  But  there  are  times  when  it  is' desired  to  get  rid 
of  the  Minister,  to  sever  the  relation  between  him  and  the 
Parish,  and  yet  there  may  be  no  charges  to  make  against 
him,  for  which  he  can  be  tried  and  convicted.  It  is  for  such 
cases  at  times  when  the  Parish  wishes  to  dismiss  the  Minis¬ 
ter,  and  yet  may  not  have  any  charge  or  crime  to  impute  to 
him,  that  the  canon  was.  enacted.  In  this  case  the  Vestry 
has  acted  within  its  power,  has  proceeded  according  to  the 
canon,  and  obtained  the  concurrence  of  the  Bishop— the 
Ecclesiastical  authority. 

Dr.  Batterson  has  stated  in  his  affidavit,  that  no  terms  as 
to  the  time  of  his  engagement  were  stipulated  between  him 
and  the  Vestry.  The  rule  of  law  in  cases  where  the  parties 
have  not  fixed  upon  any  time  for  the  duration  of  the  con¬ 
tract  between  them,  is  that  either  party  may  dissolve  it  at 
pleasure.  This  was  said  by  the  Supreme  Court,  in  Coffin  v. 
Landis ,  10  Wright,  426,  and  Peacock  v.  Cummings ,  same 
book,  page  434.  Who  then  dissolves  the  relation  ?  Either 
party  may  do  it.  Here  the  Vestry  may  do  it.  A  Parish, 
Church  or  congregation  only  acts  by  its  Vestry.  The  Vestry 
elect  the  delegates  to  the  General  Convention,  and  if  they 
dismiss  without  the  Ecclesiastical  concurrence,  the  punish¬ 
ment  therefor  falls  upon  them.  They  are  deprived  of  repre¬ 
sentation  in  the  Convention. 

The  resolutions  of  dismissal  were  introduced  and  passed 
regularly,  notwithstanding  the  refusal  of  Dr.  Batterson,  to 
put  the  question  to  them.  Mr.  Murray  Hoffman  in  his  work 

5 


54 


on  u  Ecclesiastical  Law  in  the  State  of  Yew  York,”  at  page 
78,  says,  on  this  subject  of  the  Lector’s  right  to  decline  to 
put  questions  to  a  meeting  of  the  Vestry:  “  Questions  have 
also,  in  my  experience,  arisen  as  to  the  extent  of  the  duty  of 
a  Rector,  to  put  questions  for  the  decision  of  the  Vestry. 
There  can  be  no  doubt  of  his  obligation  to  do  this,  in  every 
case  of  a  proposition  properly  within  the  province  of  the 
Vestry  to  act  upon.  It  is,  on  the  other  side,  clear,  that  he  is 
not  bound  to  put  questions  or  resolutions  tending  to  censure 
or  criminate  himself.  When  acts  or  resolutions  are  proposed 
hostile  to  the  Rector,  as  under  the  canon  respecting  a  disso¬ 
lution  of  the  connection,  or  where  a  Vestry  is  authorized  to 
present,  the  body  acts  of  necessity  as  Warden  and  Vestrymen, 
not  as  the  strict  integral  body.” 

In  this  case  the  resolutions  were  properly  put  and  voted 
for;  the  dismission  was  carried;  the  Ecclesiastical  authority 
has  concurred,  thereby  making  the  dismissal  complete,  and 
the  injunction  ought  not  to  continue.  I  ask  that  it  be 
dissolved. 

Mr.  Olmsted,  on  the  same  side,  said — 

The  Rector  is  not  a  member  of  the  Corporation,  nor  a 
member  of  the  Vestry.  The  Corporation  owns  the  Church 
property,  and  it  is  composed  of  those  who  own  pews.  The 
Vestry  is  elected  by  the  pew-holders  and  renters.  But  the 
owners  of  pews  are  the  only  ones  really  interested  in  the 
Church,  and  of  these  all  except  one  are  with  the  Vestry.  The 
renters  of  the  pews  who  favor  the  clergy  have  no  pecuniary 
interest  in  this  suit ;  they  own  nothing  of  the  Church.  If 
the  property  were  sold,  to  whom  would  the  proceeds  go  ?  Yot 
to  a  pew  renter,  nor  a  communicant,  nor  a  member  of  the 
congregation.  Yone  of  these  persons,  therefore,  have  an  in¬ 
terest  which  gives  them  a  right  to  an  injunction.  Even  if 
they  had,  the  Vestry  as  the  representative  body  has  au¬ 
thority  to  act  independently  of  them,  even  against  their 
wishes.  The  Supreme  Court  of  this  State  in  the  case  of 
Dana  v.  The  Bank  of  the  United  States ,  5  Watts  &  Sergeant, 
page  223,  held  that  the  directors  of  the  Bank  had  power  to 
make  an  assignment  of  its  assets,  notwithstanding  the  objec- 


55 


tion  and  protest  of  the  stockholders.  The  same  principle  of 
law  applied  here  would  sustain  the  action  of  the  Vestry  as 
against  the  congregation,  even  if  the  latter  had  any  property 
rights. 

The  Vestry,  by  Article  V.  of  the  Charter,  is  composed  of 
twelve  members  of  the  Church,  but  the  Eector  is  not  a  mem¬ 
ber  of  the  Vestry.  He  presides  at  the  meetings  of  the  Vestry 
by  courtesy,  not  by  right.  He  is  not  an  integral  part  of  the 
body.  In  relation  to  the  rights  of  the  Minister  and  congre¬ 
gation,  in  the  absence  of  express  provisions  in  the  canons,  the 
civil  law  will  govern,  and  the  principles  of  law  concerning 
employer  and  employe  apply  in  all  their  force.  The  employer 
can  discharge  at  any  time  unless  there  be  a  special  contract, 
and  the  employe  can  leave  whenever  he  chooses  to.  This  is 
the  law  in  this  State  according  to  the  cases  of  Coffin  v.  Lan¬ 
dis,  and  Peacock  v.  Chambers ,  already  referred  to.  Any 
other  doctrine  would  compel  a  Church  to  sustain  a  Minister 
when  he  is  totally  incompetent  to  perform  his  duties.  He 
might  become  old,  infirm,  sick  and  unable  to  serve  in  the 
Church;  and  yet  if  the  plaintiffs’  views  are  correct,  such 
Minister  could  not  be  dismissed,  but  must  remain  in  and  be 
supported  by  his  Church.  This  would  be  a  great  hardship. 

But  there  is  a  canon  on  this  subject  which  authorizes  the 
dismissal  of  Ministers.  It  is  Canon  4,  Title  II.,  and  it  pre¬ 
scribes  a  way  by  which  the  Parish  or  Church  may  dismiss  a 
Minister.  All  that  they  have  to  do  is  to  get  the  Ecclesias¬ 
tical  authority  to  concur  with  them  and  the  dismissal  is  com¬ 
plete.  That  has  been  done  here.  In  the  Office  for  the  Insti¬ 
tution  of  Ministers,  in  the  Prayer  Book,  the  settlement  of  ail 
questions  between  the  Minister  and  congregation  concerning 
a  separation  is  reserved  to  the  Bishop  and  Presbyters.  TCe 
find  in  all  the  law  of  the  Church  on  the  subject  of  the  disso¬ 
lution  of  the  pastoral  relation,  the  words  Parish,  Church,  cure 
and  congregation  used  as  synonyms  of  each  other.  The 
power  of  dismissal  resting  in  either  of  these,  is  to  be  exercised 
by  its  representative,  the  Vestry. 

Finally  the  injunction  asked  for  ought  to  be  refused  at 
this  stage  of  the  cause,  because  it  is  intended  thereby  to  com¬ 
pel  the  Vestry  to  restore  the  Ministers  to  the  places  from 


\ 


which  they  have  been  dismissed.  It  is  mandatory  upon  them, 
and  a  mandatory  injunction  will  never  be  granted  until  final 
hearing.  This  was  decided  by  the  Supreme  Court  last  win¬ 
ter,  in  the  case  of  Audenreid  v.  Reading  Railroad  Co .,  re¬ 
ported  in  the  Legal  Intelligencer  of  January  13th,  1871. 
The  plaintiffs  here  ask  for  a  preliminary  injunction  which 
would  be  mandatory  upon  the  defendants,  and  that  should 
he  refused. 

Mr.  Price,  for  the  complainants,  in  conclusion  said — 

Dr.  Batterson  and  Dr.  Stewart  are  not  here  of  their  own 
choice  or  by  their  own  act.  They  are  only  the  representa¬ 
tives  of  their  order ;  and  they  owe  it  to  that  order,  that  a 
wrong  like  that  complained  of  here,  should  not  go  unre¬ 
sented.  Arbitration  would  have  been  accepted  gladly  by 
them  ;  indeed  there  have  been  frequent  efforts  made  by  them, 
not  only  to  settle,  but  to  avert  such  difficulties  as  now  beset 
them.  If  scandal  is  brought  upon  the  Church  it  is  not  by 
them ;  others  must  bear  the  odium.  The  defendants  have 
given  the  cause  for  a  resort  to  the  Courts,  and  the  blame  for 
bringing  this  case  into  Court  at  all  lies  upon  them.  They 
are  the  wrongdoers,  and  Drs.  Batterson  and  Stewart  are 
compelled  for  their  own  sake,  and  for  the  sake  of  their  order, 
to  come  here  for  protection.  They  seek  no  revenge,  no  gain, 
nothing  but  protection. 

It  has  been  conceded  that  this  Court  has  jurisdiction  to 
inquire  whether  the  proceedings  for  the  dismissal  of  the 
Ministers  have  been  in  accordance  with  the  canons  and  dis¬ 
cipline  of  the  Protestant  Episcopal  Church.  It  can  readily 
be  shown  that  the  proceedings  now  complained  of  have  no 
warrant  in  the  law  of  the  Church. 

It  is  proper  to  inquire — are  these  parties,  before  the 
Court  as  complainants,  entitled  to  invoke  that  jurisdiction 
for  the  object  set  forth  in  the  bill?  The  affidavits  show  that 
there  are  here  complaining  of  the  action  of  the  Vestry,  mem¬ 
bers  of  the  Corporation  ;  members  of  the  Church;  holders  of 
pews  and  sittings  ;  the  larger  part  of  the  congregation  ;  and 
the  Rector  and  Assistant  Minister.  What  interest  is  there, 
of  any  possible  importance  in  the  case,  remaining  unrepre- 


57 


sented?  Fewer  parties  would  liave  been  sufficient  for  the 
purposes  of  the  case;  hut.it  is  no  valid  ground  of  objection 
that  so  many,  and  representatives  of  all  aspects  of  the  rela¬ 
tion  of  pastor  and  people,  have  manifested  their  deep  interest 
in  the  result  of  this  hearing  by  becoming  parties  to  it.  They 
are  proper  parties  complaining,  and  that  is  enough.  It  is 
not  necessary  to  look  farther  than  the  preamble  to  the  Char¬ 
ter  of  St.  Clement’s  Church  for  them.  The  preamble  desig¬ 
nates  for  whom  the  incorporation  was  asked,  and  the  Charter 
is  the  evidence  that  they  obtained  it.  Pew-owners  will  be 
found  to  be  of  no  greater  importance  under  the  Charter,  than 
other  members  of  the  congregation  who  hold  their  pews  by 
renting  them.  Both  are  alike  members  of  the  Corporation, 
and  entitled  to  appear  as  such,  and  resist  the  threatened  in¬ 
jury  so  far  as  it  may  affect  the  Corporation  merely. 

The  true  relation  to  be  regarded  now,  is  that  of  Rector  and 
congregation ;  that  which  was  established  after  Dr.  Batter- 
son  had  been  elected  by  the  Vestry  and  accepted  their  call ; 
when  he  was  instituted  or  settled  as  the  Rector  of  St.  Clement’s. 
The  relation  sought  to  be  dissolved  by  a  summary  dismissal 
of  the  Ministers,  is  an  ecclesiastical  one ;  and  the  aid  of  the 
Bishop  has  been  sought,  showing  that  the  defendants  so  re¬ 
garded  it.  They  evidently  did  not  consider  it  safe  to  rely 
upon  what  has  been  set  up  in  the  argument  for  the  defend¬ 
ants  here,  that  there  is  a  mere  civil  contract  for  hiring,  made 
between  Dr.  Batterson  aud  the  Vestry,  liable  to  be  dissolved 
at  the  pleasure  of  either.  They  would  not  require  the  assist¬ 
ance  of  the  Bishop  to  dissolve  such  a  compact  as  that.  But 
the  true  relation,  after  Dr.  Batterson  had  become  Rector, 
and  Dr.  Stewart,  Assistant  Minister,  was  ecclesiastical,  as  it 
appears  by  the  canons  and  by  the  Office  of  Institution  in  the 
Prayer  Book,  and  therefore  can  be  dissolved  only  in  one  of 
the  ways  provided  by  the  ecclesiastical  law  of  that  Church. 
The  attempt  to  dissolve  it  in  some  other  way  is  a  grievance 
to  the  congregation,  and  they  are  therefore  proper  parties  to 
the  bill  of  complaint. 

The  Rector  and  Assistant  Minister  are  also  parties  to  the 
record.  Rone  more  deeply  deplore  the  necessity  which  brings 
them  into  a  civil  Court  than  they  do.  But  the  defendants, 


53 


by  their  conduct,  have  compelled  them  to  he  here.  They 
have  no  alternative  but  to  submit  to  the  wrong,  or  appeal  to 
a  civil  Court  for  justice.  These  Presbyters  ought  to  have 
been  able  to  go  to  their  Bishop  for  protection,  for  a  hearing 
at  least;  but  as  has  been  said  by  counsel  for  the  defendants 
in  the  course  of  their  argument,  the  Bishop  has  already  con¬ 
sented  to  what  the  Vestry  did.  The  announcement  is  heard 
with  surprise  and  regret.  The  Bishop  was  not  made  a  party 
defendant  in  this  case,  only  because  it  was  believed  that  he 
would  not  consent  to  such  a  wrong  as  was  threatened.  It 
was  not  believed  that  he  would  condemn  any  one  of  the 
Ministers  in  his  Diocese  upon  ex  parte  presentment,  or  with¬ 
out  a  hearing ;  and  hence  the  Court  was  not  asked  to  enjoin 
him  also.  It  will  be  seen  now,  that  these  Ministers  find  in  a 
civil  Court  their  only  recourse  against  injustice.  Their  con¬ 
gregation,  except  the  nineteen  persons  who  voted  for  the 
acting  Vestry  on  Easter  Monday  last,  insist  that  they  shall 
resist  the  unwarranted  action  of  that  Vestry.  It  is  their 
duty  to  the  Episcopal  Church,  and  to  themselves;  and  it  is 
their  duty  to  every  brother  Presbyter  of  that  Church,  that 
they  should  l-esist  such  action,  and  as  far  as  they  can,  prevent 
its  passing  into  a  precedent,  upon  which  similiar  mischief  may 
be  done  and  justified  hereafter.  It  has  been  shown  already, 
by  my  colleague,  that  the  Keetor  is  an  integral  part  of  a 
Church  corporation,  and  that  he  has  rights  which  make  him 
a  proper  party  to  such  a  suit  as  this.  But  more  than  that, 
he  is  the  direct  object  of  the  threatened  wrong. 

What  is  the  status  of  the  defendants  who  undertake  to 
dismiss  the  Rector  and  Assistant  Minister  of  St.  Clement’s? 
They  are  the  Vestrymen  de  facto  only.  An  officer  de  facto 
of  a  private  Corporation,  as  St.  Clement’s  is,  may  do  and 
perform  sundry  acts  that  will  bind  the  Corporation  ;  but 
it  is  questionable  whether  his  powers  are  as  ample  as  those  of 
an  officer  de  jure.  Lord  Ellenborough,  in  The  King  v.  The 
Corporation  of  Bedford  Level ,  6  East,  368,  defined  such  an 
officer  to  be  one  who  has  the  reputation  of  being  the  officer 
he  assumes  to  be,  and  yet  is  not  a  good  officer  in  point  of 
law.  If  the  right  of  a  public  officer,  as  a  sheriff,  or  mayor 
of  a  city,  to  hold  his  office  is  contested,  the  incumbent 


59 


may  discharge  ail  official  duties,  but  that  is  upon  the  ground 
of  a  public  necessity.  It  is  admitted  that  a  de  facto  officer 
of  a  private  corporation,  may  perform  acts  required  to  pre¬ 
serve  the  corporation ;  he  may  bind  the  corporation  to  one 
who  has  paid  a  valuable  consideration  for  the  corporate  act ; 
he  may  hind  the  corporation  to  third  persons,  and  do  some 
other  acts  which  shall  be  binding.  He  may  sue  for  and 
recover  an  annual  subscription  to  support  the  Church,  as  in 
the  case  cited  from  6th  Cowen.  But  it  is  denied  that  an 
officer  de  facto  may  so  act  as  to  impair  or  destroy  the  useful¬ 
ness  of  the  corporation.  The  officer  whose  right  is  entire 
and  unquestioned,  is  hut  the  agent  of  the  body.  The  affi¬ 
davits  in  this  case  shows  that  out  of  about  ninety  pew- 
holders,  fifty-eight  are  opposed  to  the  action  of  the  Vestry  ; 
out  of  three  hundred  and  one  communicants  of  St.  Clement’s, 
two  hundred  and  seven  are  also  opposed ;  and  we  do  not 
know,  and  have  not  heard  of  any  in  favor  of  the  Vestry, 
other  than  the  nineteen  who  voted  for  them.  It  is  in¬ 
cumbent  on  those  who  have  undertaken  so  serious  a  business 
as  this  dismissal,  against  the  will  and  desire  of  the  congrega¬ 
tion,  to  show  a  good  and  sufficient  warrant  for  it.  What 
warrant  have  they  shown  ?  It  has  been  urged  upon  the 
mercenary  footing  of  a  contract  of  hiring,  alleged  to  be  made 
between  the  Vestry  and  the  Ministers,  for  no  definite  period, 
and  therefore  liable  to  be  terminated  at  the  will  and  pleasure 
of  either  party  to  it ;  and  that  is  urged  as  decisive  of  the 
whole  question,  as  though  such  a  contract  were  the  only 
bond  between  a  Rector  and  his  congregation  in  the  Episcopal 
Church.  It  might  be  instructive  to  know,  whether  the  Bishop 
concurred  in  the  Vestry’s  resolutions  of  dismissal,  upon  such 
gi’ounds.  It  is  not  probable  that  he  did.  It  is  more  proba¬ 
ble  that  he  would  he  as  much  surprised  to  learn  that  the 
dismissal  is  sought  to  be  justified  in  that  manner,  as  many 
others  were  surprised  to  learn  that  he  had  concurred  in  the 
resolutions  to  bring  it  about.  But  no  such  thing  exists,  in 
fact,  as  a  contract  between  the  Vestry  and  the  Rector  of  St. 
Clement’s. 

It  was  said  also,  that  the  Vestry  of  St.  Clement’s  have,  by 
the  Charter,  an  implied  power  to  dismiss  the  Ministers, 


GO 


because  the  Charter  gives  to  the  Vestry  express  power  to 
elect  them.  The  answer  is  an  obvious  one.  The  powers  of 
election  and  dismissal  are  dissimilar  ;  and  if  a  special  delega¬ 
tion  of  power  to  the  Vestry  was  necessary  to  enable  them  to 
elect  a  Rector  and  Assistant,  it  would  require  an  express 
power  to  enable  the  Vestry  to  dismiss  them ;  and  that  power 
cannot  he  found  in  the  Charter.  There  are  reasons  arising 
from  the  Ecclesiastical  relation  between  a  Rector  and  his 
congregation,  under  the  laws  and  discipline  of  the  Church, 
which  would  make  it  improper  to  introduce  such  power  into 
a  charter.  An  alleged  cause  of  dismissal  is,  under  the  Eccle¬ 
siastical  cognizance,  and  must  he  inquired  into  by  a  tribunal 
provided  by  the  canons  of  the  Church. 

Canon  4  of  1804,  respecting  differences  between  Ministers 
and  their  congregations,  not  now  in  force,  has  been  referred 
to  as  showing  what  has  been  the  sense  of  the  Church  on  this 
subject.  It  provided  that  in  cases  of  controversy  between 
rectors  of  churches  and  the  Vestry  or  congregations  of  such 
churches  which  could  not  be  settled  by  themselves,  either 
party  might  make  application  to  the  Bishop.  And  if  it  ap¬ 
peared  to  the  Bishop  and  his  Presbyters,  that  the  controversy 
had  proceeded  to  such  lengths  as  to  preclude  all  hope  of  its 
favorable  termination,  and  that  a  dissolution  of  the  connec¬ 
tion  was  indispensably  necessary  to  restore  the  peace  and  pro¬ 
mote  the  prosperity  of  the  Church,  the  Bishop  and  his  Pres¬ 
byters  were  to  recommend  the  Minister  to  relinquish  his 
charge,  on  such  condition  as  should  appear  reasonable  and 
proper  to  the  Bishop  and  his  Presbyters.  If  the  Rector  re¬ 
fused  to  comply,  then  the  Bishop  and  his  Presbyters  were  to 
proceed  according  to  the  canons  of  the  Church,  to  suspend 
him  from  the  exercise  of  ministerial  duties  within  that  Dio¬ 
cese  ;  and  if  the  congregation  or  Vestry  refused  compliance 
with  the  recommendation  of  the  Bishop  and  his  Presbyters, 
they  were  to  be  prohibited  from  sitting  in  the  Convention. 

For  the  case  of  disagreement  merely,  there  was  a  well- 
known  tribunal,  the  Bishop  and  his  Presbyters,  a  hearing  of 
both  parties,  and  a  suitable  recommendation,  in- advance  of 
action  under  other  canons.  There  has  always  been  in  the 
Episcopal  Church  a  negation  of  ex  parte  proceedings,  and  of  ' 


61 


arbitrary  power.  The  sense  of  the  Church  on  that  subject 
was  expressed  in  the  first  Pastoral  Letter  of  the  House  of 
Bishops  in  the  General  Convention  of  1808,  over  the  signa¬ 
ture  of  Bishop  White,  as  follows : 

“  Prom  worship  we  proceed  to  discipline.  And  here  we 
wish  our  clerical  and  our  lay  brethren  to  be  aware,  as,  on  the 
one  hand  of  the  responsibility  under  which  we  lie,  so,  on  the 
other,  of  the  caution  which  justice  and  impartiality  require. 
The  Church  has  made  provisions  for  the  degradation  of  un¬ 
worthy  clergymen.  It  is  for  us  to  suppose  that  there  are 
none  of  that  description,  until  the  contrary  is  made  known 
to  us  in  our  respective  places,  in  the  manner  which  the 
canons  have  prescribed.  And  if  the  contrary  to  what  we 
wish,  is  in  any  instance  to  be  found,  it  lies  on  you,  our  cleri¬ 
cal  and  lay  brethren,  to  present  such  faulty  conduct,  although 
with  due  regard  to  proof ;  and,  above  all,  in  a  temper  which 
shows  the  impelling  motive  to  be  the  glory  of  God,  and  the 
sanctity  of  the  reputation  of  his  Church. 

“  While  we  are  not  conscious  of  any  bias,  which,  under  an 
official  call,  would  prevent  the  conscientious  discharge  of 
duty,  we  wish  to  be  explicit  in  making  known  to  all,  we 
think  it  due  to  God  and  to  his  Church,  to  avoid  whatever 
may  sanction  assumed  power,  however  desirable  the  end  to 
which  it  may  be  directed.  W e  have  at  least  weighty  reasons 
to  restrain  us  from  judging  without  inquiry,  and  from  cen¬ 
suring  without  evidence  of  crime.  These  are  ends  to  which 
men  of  impetuous  spirits  -would  sometimes  draw.  But  we 
would  rather  subject  ourselves  to  the  charge  of  indifference, 
however  little  merited,  than  be  the  means  of  establishing 
precedents,  giving  to  slander  an  advantage,  against  which  no 
innocence  can  be  a  shield  ;  and  leaving  to  no  man  a  security 
either  of  interest  or  of  reputation.  Although  we  have  no 
reason  to  complain  that  sentiments  in  contrariety  to  these 
prevail  among  us  to  any  considerable  extent ;  yet  we  freely 
deliver  our  sentiments  on  the  subject,  in  order  to  give  us  au 
opportunity  of  calling  on  all  wise  and  good  men— and  we 
shall  not  call  on  them  in  vain — to  aid  us  in  resisting,  wher- 
ever  it  may  appear,  that  mischievous  spirit  which  confounds 
right  and  wrong,  in  judging  of  the  characters  and  rights  of 
others.” 


•s 


62 


The  remaining  point  urged  by  the  defendants  is,  that 
Canon  4,  Title  2,  of  the  General  Canons,  justifies  a  dissolu¬ 
tion  of  the  pastoral  connection,  if  the  Bishop  concurs  in 
making  it.  This  brings  forward  the  ecclesiastical  aspect  of 
the  case,  and  presents  the  true  point  of  controversy. 

We  maintain  that  when  a  Minister  has  been  elected  to  the 
Rectorship  of  a  Church,  and  is  instituted  or  settled  as  such 
Rector,  an  ecclesiastical  or  sacerdotal  connection  is  established 
between  him  and  his  congregation,  which  can  he  dissolved 
only  by  mutual  consent,  or  for  cause  duly  appearing.  The 
connection  is  meant  to  be  equally  permanent,  in  this  country, 
whether  the  Rector  is  formally  instituted  or  not. 

The  well  known  course  of  proceeding  in  the  Church  of 
England  is  the  presentation  of  the  Minister  who  is  to  fill  a 
vacancy ;  and  after  examination,  his  institution  by  the  Bishop; 
then  the  ceremony  of  induction  into  the  Church  and  Parish 
in  which  he  is  to  serve.  When  once  inducted,  the  incumbent 
could  be  removed  only  for  some  canonical  offence  committed 
by  him ;  and  not  then,  until  a  trial  and  condemnation  was 
had.  The  pioneers  of  the  Episcopal  Church  in  this  country, 
brought  a  like  discipline  with  them  ;  and  the  spirit  of  it  has 
pervaded  the  legislation  and  practice  of  that  Church,  and 
still  remains.  When  a  Minister  has  been  elected  to  a  Rector¬ 
ship,  and  has  accepted,  and  the  office  of  institution  is  to  be 
performed,  the  Bishop's  Letter  of  Institution  runs  thus : 

“  And  as  the  Lord  hath  ordained  that  they  who  serve  at 
the  altar  should  live  of  the  things  belonging  to  the  altar,  so 
we  authorize  you  to  claim  and  enjoy  all  the  accustomed  tem¬ 
poralities  appertaining  to  your  cure,  until  some  urgent  reason 
or  reasons  occasion  a  wish  in  you,  or  in  the  congregation 
committed  to  your  charge,  to  bring  about  a  separation  and 
dissolution  of  all  sacerdotal  relation  between  you  and  them  ; 
of  all  which  you  will  give  us  due  notice ;  and  in  case  of  any 
difference  between  you  and  your  congregation,  as  to  a  sepa¬ 
ration  and  dissolution  of  all  sacerdotal  connection  between 
you  and  them,  we,  your  Bishop,  with  the  advice  of  our 
Presbyters,  are  to  be  the  ultimate  arbiter  and  judge.” 

Here  is  another  exclusion  of  assumed  power,  and  that  in 
an  office  of  the  Church  which  reaches  hack  to  the  Reforma- 


G3 


fcion,  ancl  probably  beyond  it ;  for  it  does  not  appear  that  the 
Institution  Office  was  changed  at  the  time  of  the  Reforma¬ 
tion,  when  other  offices  were  changed.  The  desire  for  a 
separation  must  be  founded  on  a  “  reason  or  reasons the 
Bishop  is  to  be  notified  of  it ;  he  is  to  proceed  therein  with 
the  advice  of  his  Presbyters;  and  that  tribunal  is  to  judge 
of  the  reasons  alleged.  But  if  it  be  conceded  that  the  Bishop 
alone  is  to  be  “  the  ultimate  arbiter  and  judge,”  is  he  to  judge 
and  determine  without  hearing  and  investigation,  or,  what 
is  worse,  upon  hearing  one  side  only?  Every  man’s  sense 
of  justice  revolts  at  that  idea. 

As  reference  has  been  made  on  the  other  side  to  a  canon 
not  now  in  force,  to  show  what  has  been  the  expression  of 
the  Episcopal  Church  regarding  the  tenure  by  which  a  Rector 
holds  his  place,  reference  may  also  be  made  to  the  29th  Gen¬ 
eral  Canon  of  1808,  concerning  the  election  and  institution 
of  Ministers  into  Parishes  or  Churches.  That  canon  con¬ 
cluded  thus : 

“  But  it  is  to  be  understood  that  this  Church  designs  not 
to  express  any  approbation  of  any  laws  or  usages  which  make 
the  station  of  a  Minister  dependant  on  anything  else  than 
his  own  soundness  in  the  faith,  or  worthy  conduct.  On  the 
contrary,  the  Church  trusts  that  every  regulation  in  contra¬ 
riety  to  this,  will  be  in  due  time  reconsidered,  and  that  there 
will  be  removed  all  hindrances  to  such  reasonable  discipline 
as  appears  to  have  belonged  to  the  churches  of  the  most  ac¬ 
knowledged  orthodoxy  and  respectability.” 

Again,  Canon  1  of  1795,  required  every  Bishop  to  visit  the 
Churches  within  his  Diocese  at  least  once  in  three  years  ;  but 
no  State  was  to  elect  a  Bishop  unless  there  be  at  least  six 
Presbyters  residing  and  officiating  therein.  By  Canon  3  of 
1799,  it  was  provided  that  no  clergyman  employed  by  the 
year,  or  for  a  limited  time,  shall  be  considered  as  a  regularly 
officiating  and  resident  Minister  of  the  Church  in  any  State, 
for  the  purpose  of  electing  a  Bishop  under  the  Canon  of  1795. 

The  canons  have  been  moulded  and  remoulded  from  time 
to  time,  by  the  General  Conventions  of  the  Episcopal  Church, 
but  cardinal  rules  of  discipline  have  not  been  changed.  The 
Office  of  Institution  of  Ministers,  which  asserts  the  relation 


64 


between  the  Rector  and  his  congregation,  remains  the  same 
to  this  day,  and  the  obligation  to  investigate  before  a  sentence 
of  dismissal  is  sealed,  is  as  binding  as  ever  before.  The  part 
of  Canon  4,  relied  on  by  the  defendants,  is 

“In  case  a  Minister  who  has  been  regularly  instituted  or 
settled  in  a  Parish  or  Church,  be  dismissed  by  such  Parish  or 
Church  without  the  concurrence  of  the  Episcopal  authority 
of  the  Diocese,  the  Vestry  or  congregation  of  such  Parish  or 
Church  shall  have  no  right  to  a  representation  in  the  Con¬ 
vention  of  the  Diocese,  until  they  have  made  such  satisfac¬ 
tion  as  the  Convention  may  require ;  but  the  Minister  thus 
dismissed  shall  retain  his  right  to  a  seat  in  the  Convention, 
subject  to  the  approval  of  the  Ecclesiastical  authority  of  the 
Diocese.” 

It  is  wrong,  then,  for  a  congregation  to  dismiss  their 
settled  Minister  without  the  concurrence  of  the  Bishop,  and 
if  such  thing  is  done,  the  congregation  is  to  be  punished  for 
it,  by  a  loss  of  representation  in  the  Diocesan  Convention. 
The  canon  does  not  concede  that  a  Vestry  can  dismiss  under 
any  circumstances.  Does  the  prohibition  of  a  dismissal 
without  the  concurrence  of  the  Bishop,  necessai’ily  imply 
that  it  may  be  done  with  his  arbitrary  concurrence,  and 
without  more  than  that? 

In  what  case  may  the  Bishop  concur  in  dismissal  by  the 
Parish  or  Church,  in  order  to  render  it  effective?  Surely  not 
when  it  is  sought  without  reason,  or  for  no  cause  shown. 
The  second  section  of  the  same  Canon  4,  refers  to  the  case  in 
which  the  Bishop  intervenes,  as  one  of  “  regular  and  canonical 
dissolution  between  a  Minister  and  bis  congregation,”  and 
provides  that  it  shall  be  recorded  as  such.  By  necessary 
implication,  it  would  appear  that  the  concurrence  is  to  be 
given  in  some  canonical  way.  This  becomes  even  more 
apparent  when  it  is  considered  that  the  canons  are  the  source 
of  the  Bishop’s  authority  to  deal  with  the  Ministers  in  his 
Diocese,  and  that  he  is  not  the  custodian  of  any  arbitrary 
power.  Whatever  may  come  of  the  assumed  power,  which 
the  House  of  Bishops  rebuked  in  their  Pastoral  Letter,  is 
evil.  A  concurrence  not  founded  upon  some  canon,  would 
be  unauthorized,  and  therefore  a  concurrence  to  no  purpose. 


65 


Again,  this  matter  of  dismissal  is  in  the  nature  of  a 
sentence  and  penalty.  It  involves  the  salary  of  the  Minister, 
which  is  his  right  and  his  property,  and  it  involves  his  repu¬ 
tation  also,  both  of  which  are  objects  of  legal  protection.  It 
appears  by  the  affidavits  read,  that  the  sentence  and  penalty 
now  threatened  to  be  imposed,  have  been  made  up  and  re¬ 
solved  upon  without  accusation  of  the  Ministers  of  St.  Clem¬ 
ent’s,  without  notice  to  them,  or  hearing ;  and,  so  far  as  any¬ 
thing  appears  in  this  case,  Avithout  any  assigned  reason  or 
cause.  In  this  manner  the  injury  to  reputation  is  to  come, 
for  no  Minister  can  be  thus  summarily  dismissed,  without 
serious  detriment  to  his  reputation.  How  it  is  argued  upon 
the  other  side,  that  all  this  may  be  done,  and  that  the  fourth 
General  Canon  authorizes  it.  The  complainants  deny  that 
the  canon,  fairly  interpreted  as  one  of  a  body  of  canons  for 
the  gOA7ernment  of  the  Church,  does  authorize  such  a  course 
of  procedure,  nevertheless  if  such  be  its  true  intent  and 
meaning,  then  the  canon  is  in  conflict  with  the  law  of  the 
land,  and  must  fall  before  it. 

The  construction  to  be  given  to  it,  should  harmonize  it 
with  the  rest  of  the  canons,  and  with  the  known  discipline 
of  the  Church.  It  should  uot  be  regarded  as  purposely  in 
conflict  Avith  general  principles  of  action,  which  have  run 
through  all  prior  legislation  of  the  Church  on  that  subject, 
if  it  be  possible  to  escape  such  view  of  it.  That  is  possible, 
if  the  Bishop’s  concurrence  is  given  or  withheld  Avith  due 
regard  to  the  provisions  of  other  canons ;  and  Avith  due 
regard  to  Avhat  is  contained  in  the  Office  of  Institution, 
Avhich  is  above  the  canons.  Is  this  case  one  of  difference 
only,  betAveen  the  Ministers  and  their  congregation  ?  Then 
let  it  be  judged  by  the  Bishop  and  his  council,  whether  the 
council  be  composed  of  his  Presbyters  or  the  Standing  Com¬ 
mittee  of  the  Diocese.  Is  the  case  founded  upon  some 
accusing  complaint  presented  by  the  Vestry  to  the  Bishop? 
Ample  provision  is  made  for  that  also.  If  it  be  an  accu¬ 
sation  of  crime  or  immorality ;  or  of  holding  and  teaching 
publicly  or  privately,  any  doctrine  contrary  to  that  held  by 
the  Protestant  Episcopal  Church  in  the  United  States;  or  of 
violation  of  the  Constitution  or  Canons  of  the  Church  ;  or  of 


66 


any  act  which  involves  a  breach  of  ordination  vows ;  then 
the  General  Canon  2,  under  Title  2,  points  out  that  the 
Minister  is  to  be  presented  and  tried  for  either  of  those 
offences;  and  if  found  guilty,  (not  otherwise,)  he  shall  be 
admonished,  suspended,  or  degraded,  according  to  the  Canons 
of  the  Diocese  in  which  the  trial  takes  place.  Almost  every 
supposable  case  of  sufficient  importance  to  justify  official 
action,  is  thus  specifically  provided  for  in  one  way  or 
another.  There  is  no  need  to  delve  into  the  ambiguous 
language  of  the  fourth  Canon  for  an  implied  authority,  to 
put  a  sentence  and  punishment  in  advance  of  investigation 
or  trial,  and  thus  reverse  the  orderly  course  of  proceedings 
for  which  the  canons  have  amply  provided.  Such  a  method 
of  proceeding  savors  too  much  of  looking  up  an  excuse  for 
assumption  of  power,  which  the  Church  abhors. 

See  with  what  order  and  fairness  accusations  are  to  be 
proceeded  with,  under  the  first  Canon  of  the  Episcopal 
Church  in  the  Diocese  of  Pennsylvania.  The  presentment 
shall  be  in  writing,  specifying  with  clearness  and  certainty, 
as  to  time,  place  and  circumstance,  the  offence  charged.  It 
must  be  made  to  the  Bishop  by  the  Convention,  or  by  the 
Warden  or  Vestry  of  the  Parish  to  which  the  accused 
belongs,  or  by  three  Presbyters  of  the  Diocese ;  but  the 
accusers  must  pledge  themselves  to  make  good  the  accusa¬ 
tion  ;  and  furnish  in  writing,  the  names  of  the  witnesses  and 
the  purport  of  their  evidence.  Then  the  Bishop  shall  cause 
a  copy  of  the  presentment  to  be  served  upon  the  accused, 
and  lie  shall  be  summoned  to  show  cause  at  a  certain  day 
and  place,  why  a  commissary  should  not  be  appointed  to 
take  and  report  the  testimony  on  both  sides ;  but  either 
before  or  after  the  appointment  of  a  commissary,  or  after  a 
report  by  him,  the  Bishop  shall  have  power  to  dismiss  the 
presentment,  and  declare  the  accused  party  discharged,  if 
the  accusation  contained  in  it  appears  to  him  an  insufficient 
cause  of  presentment  in  itself,  or  to  be  clearly  unsupported 
by  the  evidence.  The  accused  shall  have  fifteen  days’  notice 
of  the  proceeding  before  the  commissary,  who  is  to  examine 
the  witnesses  on  both  sides  and  take  their  testimony  in 
writing.  Such  is  the  course  of  preliminary  examination, 


67 


with  a  view  to  ascertain  whether  the  accusation  shall  be 
dismissed,  or  submitted  to  a  Court  of  Presbyters  for  formal 
trial ;  and  it  is  only  after  that  formal  trial  and  conviction 
that  the  Bishop  is  at  liberty,  under  the  fifth  of  the  State 
Canons,  to  admonish,  to  suspend  a  Minister,  or  to  degrade 
him  from  the  ministry,  according  to  the  character  and  cir¬ 
cumstances  of  his  offence.  But  it  is  said  on  the  other  side, 
that  the  dismissal  of  a  Minister  is  neither  admonition,  nor 
suspension,  nor  degradation.  It  is  worse  than  the  first,  hut 
not  so  bad  as  the  last,  which  is  the  penalty  in  extreme  cases 
only.  Still  it  is  a  penalty,  and  more  damaging  to  the  repu¬ 
tation  of  a  clergyman  than  admonition  would  he  ;  and  there 
must  he  canonical  authority  to  warrant  the  infliction  of  a 
penalty  of  any  degree.  The  canonical  authority  should  be 
found  in  something  better  than  an  implication  sought  to  be 
derived  from  ambiguous  language  of  a  prohibitory  canon, 
which  is  not  ambiguous  however,  in  relation  to  the  thing 
prohibited,  and  to  which  the  provisions  of  the  canon  should 
he  confined. 

The  defendants  have  not  been  able  to  produce  a  case,  or 
any  writer  upon  the  law  of  the  Episcopal  Church,  coinciding 
with  their  view.  On  the  contrary,  the  complainants,  have 
furnished  the  views  of  such  authorities  as  Bishop  White, 
Hoffman,  and  Dr.  Hawks,  who  do  not  sustain  the  alleged 
right  of  a  Bishop  and  Vestry  to  dismiss  a  Sector  summarily. 
But  if  it  be  a  fair  construction  of  the  fourth  General  Canon, 
that  a  Rector  shall  not  he  dismissed  without  the  concurrence 
of  the  Bishop,  therefore  he  may  he  dismissed  with  such  con¬ 
currence;  still  it  is  insisted  that  the  Bishop’s  concurrence  is 
not  to  he  yielded  arbitrarily,  hut  only  upon  proper  cause 
shown  in  some  orderly  manner,  in  which  both  sides  shall  be 
heard  and  opportunity  for  explanation  given,  and  then  only 
if  the  circumstances  of  the  case  are  found  to  warrant  the 
dismissal.  It  must  not  he  forgotten  that  Presbyters  of  the 
Episcopal  Church  have  rights  under  the  canons  of  their 
Church,  and  that  they  have  civil  rights  also,  and  that  both 
must  be  regarded.  But  we  are  asked  what  is  to  be  done 
when  a  Minister  becomes  unable,  or  refuses  without  good 
cause  to  perform  his  duties  and  neglects  them.  Canon  12  of 


68 


Title  1,  §  vi.  [3]  then  comes  into  force.  By  it  the  Bishop  or 
a  Standing  Committee,  or  other  duly  authorized  persons,  shall 
have  power  to  inquire  into  the  matter,  and  may  open  the 
doors  of  the  Church  to  some  other  Minister.  But  hy  para¬ 
graph  [4]  of  this  same  canon,  this  shall  not  affect  any  legal 
rights  of  property  of  any  Parish :  that  is  the  Minister’s 
rights  when  he  has  become  feeble  and  unable  to  serve.  He 
has  his  rights  as  well  as  the  Parish,  and  they  will  always  as 
they  have  heretofore,  accommodate  them  to  each  other. 

The  opinion  of  the  Court  was  delivered  May  2Ttli,  1871,  by 

Ludlow,  J.  We  approach  the  consideration  of  this  case 
with  an  oppressive  sense  of  the  responsibility  cast  upon  us. 
W e  see  in  it  questions  of  real  difficulty,  involving  the  con¬ 
sideration  not  onl}’  of  the  civil  law,  but  of  the  canon  law  of 
a  body  of  influential  and  respected  Christians  ;  and  a  question 
also  arises,  upon  the  proper  legal  solution  of  which  depends 
the  dearest  rights  of  every  Presbyter  of  “  The  Protestant 
Episcopal  Church ”  in  this  Diocese,  and  probably  in  this 
country.  W e  shall  endeavor  to  solve  these  questions.  We 
mean,  if  possible,  to  he  right  in  our  conclusions  ;  if  we  should 
fall  into  error,  it  is  a  satisfaction  to  know  that  it  may  be 
corrected  elsewhere. 

The  case  presented  is  simply  this.  An  incorporated  body 
exists  in  this  country  known  as  “  The  Kector,  Church  War¬ 
dens  and  Vestrymen  of  St.  Clement’s  Church,  in  the  City  of 
Philadelphia.”  By  the  5th  Article  of  the  Constitution, 
“  the  election  of  the  Vestry  shall  be  made  every  year  on 
Easter  Monday.”  An  election  took  place  this  year  accord¬ 
ing  to  the  Charter,  at  the  time  therein  specified. 

On  the  18th  of  April,  1871,  a  suggestion  for  a  writ  of  quo 
warranto  was  filed  in  the  Supreme  Court  of  the  State.  That 
writ  was  allowed  by  one  of  the  justices  of  that  Court ;  and  it 
is  now  pending  and  is  undetermined.  The  object  of  this  writ 
was  to  test  the  legality  of  the  election  of  the  defendants  in 
this  bill,  as  the  Vestrymen  of  St.  Clement’s  Church.  On  the 
3d  day  of  May,  1871,  a  meeting  of  certain  persons,  claiming 
to  be  the  Vestry  of  the  Church,  was  held,  whereupon  resolu¬ 
tions  were  adopted  dismissing  the  Rector  and  Assistant  Min- 


69 


ister  (with  the  concurrence  of  the  ecclesiastical  authority  of 
the  Diocese)  from  their  offices.  In  the  affidavit  of  one  of  the 
defendants,  it  appears  that  on  the  fourth  day  of  May,  1871, 
“  the  Bight  Rev.  William  Bacon  Stevens,  Bishop  of  the 
Diocese  of  Pennsylvania,  concurred  in  the  same.”  The  letter 
or  order  of  concurrence  has  not  been  submitted  to  the  Court, 
and  it  is  not  pretended  that  the  Rector  or  his  assistants  ever 
had  notice  from  the  Bishop  of  the  matter  submitted  to  him, 
or  ever  had  a  hearing  or  trial,  or  opportunity  for  explanation. 

The  contract  between  the  Vestry  and  the  Rector  and  his 
Assistant  contained  no  special  terms  as  to  the  tenure  of  office. 
It  is  admitted  by  the  affidavits  tiled  on  behalf  of  the  defend¬ 
ants,  that  of  the  plaintiffs,  all  except  three,  to  wit,  the  Rector, 
his  Assistant,  and  Mr.  Lewis  Gr.  Bull,  are  renters  of  pews  and 
sittings  in  said  Church.  It  is  denied  that  they  (the  plaintiffs) 
or  either  of  them,  own  or  have  ever  owned  a  pew,  though 
some  are  members  of  the  Church,  entitled  to  vote.  We  are 
asked  to  give  relief  in  three  forms. 

1st.  To  adjudge  and  decree  that  plaintiffs  are  members  of 
the  Corporation,  etc. 

2d.  To  restrain  the  defendants  from  dissolving  the  con- 
nection  between  the  Rector  and  his  Assistant  and  the  congre- 
tion,  and  from  intermeddling  or  taking  any  action  therein  as 
a  Vestry  or  Vestrymen. 

3d.  To  restrain  the  defendants,  their  agents  or  servants, 
from  interfering  in  any  way  with  the  Rector  and  his  Assist¬ 
ant  in  the  exercise  of  their  respective  offices  until  a  regular 
and  canonical  dissolution  takes  place. 

This  brief  statement  of  the  facts  of  the  case  (about  which 
there  seems  to  be  no  dispute)  presents  for  our  consideration 
three  important  questions  of  law,  in  disposing  of  which  we 
think  we  shall  be  able  to  embrace  all  points  presented,  and 
thus  decide  this  cause. 

1st.  Has  a  civil  tribunal,  and  especially  a  Court  of  Equity, 
jurisdiction,  and  if  so,  are  these  proper  parties  before  the 
Court  ? 

2d.  Can  a  Vestry  de  facto  act,  supposing  such  action  to  be 
in  other  respects  canonical  ? 

3d.  Can  a  Rector,  without  his  consent,  be  dismissed  under 

6 


and  by  virtue  of  tbe  Charter  and  By-laws  of  this  Corporation, 
or  by  virtue  of  the  canonical  laws  of  the  Protestaut  Episco¬ 
pal  Church  in  the  Diocese  of  Pennsylvania,  or  of  the  Pro¬ 
testant  Episcopal  Church  of  the  United  States? 

Tbe  first  proposition  can  easily  be  maintained.  It  has 
been  frequently  decided  that  the  civil  tribunals  will  interfere 
in  matters  connected  with  disputes  or  contests  arisiug  out  of 
things  ecclesiastical,  only,  however,  in  so  far  as  it  is  neces¬ 
sary  to  ascertain  if  the  governing  body  has  exceeded  its 
power,  or,  in  other  words,  has  acted  within  the  scope  of  its 
authority.  The  learned  counsel  upon  both  sides  of  this 
cause,  during  the  argument,  admitted  this  proposition,  and 
in  Pennsylvania  our  recent  cases,  McGinnis  v.  Watson ,  5 
Wright,  9,  and  Sutter  v.  Trustees,  6  Wright,  503,  were  de¬ 
cided  upon  principles  which  preclude  any  further  discussion 
of  the  subject. 

If  a  civil  tribunal  can  thus  take  jurisdiction,  a  Court  ot 
Equity,  under  the  facts  of  this  case,  and  with  the  parties 
now  before  the  Court,  ought  certainly  to  do  so.  While 
it  is  quite  clear  that  we  look  only  at  the  civil  nature  of  the 
contract  entered  into  between  the  Rector  and  the  con°;re°;a- 
tion,  in  a  case  involving  a  direct  breach  of  contract,  it  is 
also  certain  that  the  very  contract  between  the  parties  may 
give  birth  to  rights,  which,  being  violated,  can  onty  be 
maintained  in  a  Court  of  Equity.  The  general  principle 
contended  for  b}7  the  counsel  for  defendants,  to  wit,  that 
where  in  an  agreement  for  service  no  time  is  fixed,  either 
party  may  dissolve  the  contract,  (see  Coffin  v.  Landis ,  10 
Wright,  42G  ;  Kirk  v.  Hartman ,  13  P.  F.  Smith,  p.  97,)  is  not 
denied,  nor  do  we  doubt  the  right  of  a  Rector  to  bring  an 
action  at  law  for  damages,  against  those  who  prevent  him 
from  entering  the  church  building.  That  doctrine  was 
clearly  maintained  by  the  Supreme  Court  of  New  Jersey,  in 
a  learned  opinion  delivered  in  Lynd  v.  Menzies ,  by  Beasley, 
C.  J.,  to  be  found  reported  in  the  American  Law  Register, 
(new  series,)  Vol.  viii.,  p.  94.  All  we  now  decide  is,  that  with 
the  facts  before  us,  a  suit  at  law  would  be  useless,  and  that 
the  plaintiffs  would  be  remediless. 

Under  and  by  virtue  of  the  canon  laws  of  the  Protestant 


71 


Episcopal  Church  in  the  United  States,  a  Rector,  and  such 
of  his  parishioners  as  are  members  of  the  Church,  and  have 
rented  pews  and  sittings,  who  have  made  profession  of  its 
faith,  and  submitted  to  its  government,  have  rights  which 
are  to  be  respected,  (see  Cowmyer  v.  United  German  Church ,  2 
Sandf.  Ch.  186,)  and  which,  being  violated,  cannot  be  main¬ 
tained  by  an  action  for  damages  merely.  The  Rector  has  not 
only  a  claim  for  the  salary,  which  by  a  contract  is  to  be  paid 
to  him,  but  he  has  also,  under  the  charter  of  incorporation, 
those  rights  guaranteed  by  canonical  law,  which  the  peti¬ 
tioners  desired  to  obtain  when  they  “  associated  for  the  pur¬ 
pose  of  worshipping  Almighty  God,  according  to  the  faith  and 
discipline  of  the  Protestant  Episcopal  Church  in  the  United 
States  of  America.”  The  Charter  being  granted,  the  Rector 
and  his  parishioners,  together  with  the  Vestry,  held  rights 
under  and  by  virtue  of  that  fundamental  law,  which  in  terms 
“  adopts  the  constitution,  canons,  doctrine,  discipline,  and 
worship  of  the  Protestant  Episcopal  Church”  in  this  Diocese, 
and  in  the  United  States,  and  acknowledges  their  authority. 

Mutual  rights  and  obligations  were  thereupon  created,  as 
sacred  as  any  known  to  Courts  of  Equity.  If  these  rights 
cannot  be  maintained  in  this  Court,  remediless  injury  may 
be  inflicted  upon  the  plaintiffs  in  this  bill. 

I  care  not  now  to  discuss  the  exact  legal  bearing  of  the 
Office  of  Institution.  It  is  enough  for  my  present  purpose  to 
know,  that  when,  as  by  the  rubric  directed,  the  senior  "War¬ 
den,  (or  the  member  of  the  Vestry,)  delivered  the  keys  of 
the  Church  to  the  new  incumbent,  he  said,  “  In  the  name  and 

on  behalf  of - -  Parish,  I  do  receive  and  acknowledge 

you,  the  Rev.  A.  B.,  as  Priest  and  Rector  (or  Assistant)  of  the 
same.” 

By  Article  8  of  the  Constitution  of  the  Church,  among 
other  things,  the  “  Administration  of  the  Sacraments  and 
other  Rites  and  Ceremonies  of  the  Church,”  established  by 
the  General  Conventions,  shall  be  used  in  the  Protestant 
Episcopal  Churches.  By  virtue  of  the  civil  contract  and  the 
canon  of  the  Church,  a  person  becomes  canonically  the  Rec¬ 
tor.  It  is  true  he  may  or  may  not  receive  a  salary ;  he  may 
or  may  not  be  an  integral  part  of  the  corporation  ;  by  the 


canonical  law  lie  lias  the  right,  as  Rector  of  a  certain  Parish, 
to  perform  ecclesiastical  duties  there  in  that  place,  to  wit, 
the  Church  building  ;  there  he  has  the  right  to  administer  the 
sacraments  ;  there  to  solemnize  the  marriage  service ;  there  to 
perform  the  duties  incident  to  the  public  worship  of  Almighty 
God. 

More  than  this,  among  other  rights,  a  canonically  settled 
Rector  has  a  right  to  prohibit  another  Minister  of  the  Church 
from  officiating  in  his  Parish,  or  within  his  parochial  cure, 
without  his  consent.  Title  1,  Canon  12,  sect.  6  [1]  of  Digest 
of  the  Canons.  I  quite  concur  with  Chief  Justice  Beasley  in 
the  remark  made  by  him  in  the  case  heretofore  cited,  when 
he  said,  “Xo  matter  in  whom  the  title  may  reside,  if  the 
congregation  has  the  use  of  the  building,  the  Rector  must,  of 
necessity,  have  the  right  to  partake  in  such  use and  I  may 
add,  not  only  that  he  may  have  possession  of  the  building, 
hut  that  he  may  of  right  perform  his  duties  there,  in  that 
place,  and  not  elsewhere,  unless  at  his  own  option.  If  these 
are  the  rights  of  the  Rector,  any  parishioner  who  is  a  renter 
of  a  pew  and  constant  attendant  at  the  Church,  who  in 
good  faith  believes  the  doctrines  of  the  Church,  and  submits 
to  its  government,  has  the  equitable  right  to  the  services  of 
the  Rector  of  this  Church  within  this  particular  Parish  or 
parochial  cure,  until  such  services  are  dispensed  with  by 
competent  authority. 

To  argue  that  because  a  civil  contract  exists  for  the  pay¬ 
ment  of  money,  therefore,  in  case  of  a  dispute,  the  Rector  is 
turned  over  exclusively  to  a  court  of  law  for  damages,  is  to 
run  counter  to  the  whole  policy  of  the  law  ;  to  permit,  under 
color  of  a  contract,  a  breach,  or  possible  breach,  of  rights  of 
the  most  solemn  character  ;  to  confound  things  sacred  and 
profane  ;  and  this  Court  would  be  obliged  to  witness  the  utter 
destruction  of  the  dearest  rights,  under  the  charter  and 
canons  of  the  Church,  of  the  Rector  and  parishioners  with¬ 
out  power  to  afford  equitable  relief. 

I  will  not  so  administer  the  law.  I  will,  as  a  chancellor, 
take  jurisdiction  in  equity;  and  having  the  parties  and  the 
cause  within  my  judicial  grasp,  will  treat  the  argument  in 


73 


favor  of  a  mere  action  at  law,  and  against  the  remedy  in 
equity,  as  of  the  earth,  earthy — it  must  therefore  perish. 

Having  disposed  of  our  first  proposition,  we  proceed  to 
consider  the  second. 

Can  a  Vestry  de  facto  act,  supposing  such  action  to  be  in 
other  respects  canonical? 

We  speak  of  a  Vestry  de  facto ,  because  it  is  not  denied 
that  by  a  writ  of  quo  warranto  the  defendants’  title  to  their 
office  has  been  and  is  contested,  and  that  the  suit  is  now 
pending  and  is  undetermined.  “  An  officer  de  facto  is  one 
who  has  the  reputation  of  being  the  officer  he  assumes  to  be, 
and  yet  is  not  a  good  officer  in  point  of  law.”  Parker  v. 
Keib ,  1  Lord  Raymond,  658  ;  King  v.  Corporation  of  Bedford, 
6  East,  868.  Or  he  is  one  who  actually  performs  the  duties 
of  an  office  with  apparent  right,  and  under  claim  and  color 
of  an  appointment  or  election.  He  is  not  an  officer  de  jure, 
because  not  in  all  respects  qualified,  nor  an  usurper ,  who 
presumes  to  act  officially  without  just  pretence  of  right. 
Brown  v.  Bunt ,  37  Maine,  429.  We  need  not  multiply 
authorities,  (as  was  said  in  my  opinion  in  Thompson  v.  Ewing, 
1  Brewster,  121,)  when  the  whole  subject  was  most  ably 
discussed  and  determined  in  The  People  v.  Cook,  14  Barbour, 
before  the  Supreme  Court  of  Hew  York,  and  on  appeal 
affirmed  by  the  Court  of  Errors  and  Appeals.  See  4  Sel- 
den,  67. 

We  do  not  now  express  an  opinion  as  to  the  legality  of  the 
election  held  on  Easter  day.  These  defendants  may  be  the 
Vestry  de  jure  ;  but  for  the  present,  and  for  the  purposes 
of  this  case,  I  am  of  the  opinion  that,  the  Vestry  is  a  Vestry 
not  dejure  but  de  facto;  and  by  all  the  analogies  an  officer 
de  facto  may,  without  doubt,  legally  act  in  and  about  the 
duties  of  his  office.  Indeed,  in  one  case  reported  it  is  said, 
where  an  abbot  or  parson,  erroneously  inducted,  made  a  deed 
or  obligation,  though  afterwards  deprived  of  his  benefice, 
yet  this  shall  bind ;  but  the  deed  of  one  who  usurps,  before 
installation  or  induction,  or  who  occupies  in  time  of  vaca¬ 
tion,  without  election  or  presentation,  is  void.  Vin.  Abr. 
Officer  and  Offices,  Gf.  3,  vol.  1. 

In  Baircl  v.  Bank  of  Washington ,  11  Sergeant  &  Rawle,  411, 


74 


the  Court  thought  that  the  de  facto  title  of  an  officer  depended, 
not  upon  the  question  whether  the  appointment  was  void  or 
only  voidable,  hut  whether  the  officer  has  come  in  under  color 
of  right  or  in  open  contempt  of  all  right  whatever;  and  it  was 
further  said  in  that  cause,  that  the  law  applied  not  only  to 
public,  but  also  to  private  officers.  Indeed,  an  examination 
of  the  cases  upon  this  point,  clearly  satisfies  me  that  as  to 
third  persons  having  an  interest  therein,  the  acts  of  de  facto 
officers  are  valid  ;  though  the  case  cannot  he  found,  where 
the  right  has  been  successfully  claimed  by  an  officer  de  facto, 
claiming  for  an  act  done  by  himself.  Riddle  v.  Co.  of  Bedford, 
7  Sergeant  &  Rawle,  392. 

The  case  cited  by  the  defendants’  counsel,  Trustees  of  Ihe 
Vernon  Society  v.  Hill,  6  Cowen,  23, sustains  the  view  they  take 
of  it ;  and  on  the  whole,  I  am  inclined  to  the  opinion  (though 
for  reasons  hereafter  to  be  stated  it  is  not  necessary  to  decide 
positively  the  point),  that  the  Vestry,  if  otherwise  compe¬ 
tent,  had  authority  to  act. 

We  are  thus  brought  to  the  consideration  of  the  last  point 
to  be  discussed,  and  which  is  not  only  the  most  important, 
hut  the  most  difficult  one  to  decide  in  this  case. 

Can  a  Rector  be  dismissed  without  his  consent  by  virtue 
of  the  Charter  and  By-laws  of  St.  Clement’s  Church,  or  by 
virtue  of  any  canonical  law  or  laws  whatever,  of  binding- 
force,  iu  the  Protestant  Episcopal  Church  in  the  United 
States,  or  iu  the  Diocese  of  Pennsylvania,  at  this  time? 

We  confine  our  investigation  rigidly  to  the  sources  of 
power  above  enumerated,  because  we  have  no  right  to  go  be¬ 
yond  them.  If  the  resolutions  of  dismissal  are  to  be  con¬ 
sidered  legal,  they  must  be  so,  because  sanctioned  by  the  civil 
or  canonical  laws  specified.  All  else  is  ultra  vires,  and  be¬ 
yond  the  scope  of  legitimate  authority. 

Looking  now  to  the  Charter  and  By-laws  of  the  Church,  I 
find  a  power  vested  in  the  Yestry  to  elect  a  Rector.  See 
Charter,  Art.  5  ;  By-Laws,  Art.  3.  But  upon  the  question  of 
his  dismissal  the  Charter  and  By-laws  are  silent. 

By  the  common  law,  as  long  ago  as  Baggs’  Case,  decided 
in  13th  Jas.  1,  and  reported  in  the  11th  Coke,  99,  (a,)  it  was 
determined  that  the  power  of  amotion  did  not  pass  by  a 


75 


grant  of  the  power  to  elect,  as  incidental  to  it,  but  must  be 
expressly  reposed  in  the  select  body  by  the  Charter.  It  was 
assumed  by  Lord  Mansfield,  that  it  may  be  transferred  to  a 
select  body  by  a  by-law,  in  the  same  manner  as  the  right  of 
election.  Wilcock  on  Corp.  247,  note  to  sec.  634. 

Even  if  the  Vestry,  under  Rex  v.  Doncaster ,  1  Barnardiston, 
265,  had  the  right  to  make  a  by-law  upon  the  subject,  none 
now  exists;  and  Wilcock  very  justly  observes,  that  in  a  cor¬ 
poration,  by  charter,  surely  such  a  power  must  be  shown  to 
have  been  expressly  granted  by  a  charter  or  a  subsequent 
by-law.  If  there  is  no  special  provision  on  the  subject  in  the 
charter,  the  power  of  removal  of  a  member  resides  in  the 
whole  body.  2  Kent,  359 ;  King  v.  Mayor  f  Burgesses  of 
Dyne ,  1  Douglass,  149.  And  this  last  case  also  decides,  that 
if  special  power  be  delegated  to  a  part  of  the  body,  it  must 
be  shown  to  exist. 

We  think  that  beyond  a  doubt,  the  resolutions  adopted 
by  the  Vestry  are  per  se  null  and  void,  as  being  beyond  the 
powers  delegated  by  the  Charter  and  By-laws. 

Here  we  might  pause,  and  for  the  purposes  of  this  case, 
found  our  final  order  upon  the  view  we  take  of  the  power  of 
the  Vestry,  without  deciding  how  far  a  congregation,  with  the 
consent  of  the  Bishop,  may  dissolve  the  connection  ;  but  as  it 
is  stated  that  the  resolutions  have  received  the  concurrence 
of  the  Ecclesiastical  authority  of  the  Diocese,  I  will  go  one 
step  further,  because  the  question  has  been  argued,  and  in¬ 
quire  whether  on  that  account  they  are  valid?  If  so, it  must 
be  because  of  some  canon  of  the  Protestant  Episcopal  Church 
in  the  United  States,  or  of  this  Diocese,  or  the  power  which 
will  give  validity  to  this  action  of  the  Vestry,  must  he  con¬ 
tained  in  the  constitution  of  the  Church  itself.  I  have  ex¬ 
amined  the  canons  of  the  Church  of  England  for  light  upon 
this  subject,  not  because  I  believe  they  are  of  binding  effect 
here,  but  because  as  Chief  Justice  Beasley  remarked,  “the 
English  Ecclesiastical  law,  although  somewhat  modified  by 
new  circumstances,  and  by  American  usages  and  statutes, 
constitutes  the  substantial  basis  of  the  law  controlling  the 
affairs  of  this  particular  Church.” 


76 


These  canons,  by  reason  of  the  peculiar  nature  of  the  laws 
of  England  upon  the  subject,  give  us  no  assistance,  except 
it  may  he  said  that  no  case  has  been  discovered  wherein 
any  priest  has  been  condemned  without  a  hearing.  The  con¬ 
stitution  of  the  Church  in  the  United  States,  after  much 
discussion,  extending  over  a  long  period  of  time,  from  Octo¬ 
ber,  1784,  to  August,  1789,  was  at  this  last  date  finally  con¬ 
summated  and  became  the  great  Charter  of  the  Church,  the 
universal  rule  of  action,  and  the  bond  of  a  common  faith. 
(Hawks’  Eccl.  Contributions,  12.)  Ho  express  power,  such 
as  is  claimed  in  this  case,  is  granted  in  terms  in  the  constitu¬ 
tion.  If  it  exists  at  all,  it  must  be  found  in  the  canons  of 
the  Church  at  large  or  of  this  Diocese. 

The  canons  of  the  Diocese  of  Pennsylvania  have  been  ex¬ 
amined,  and  are  now  before  me,  but  these  are  silent  upon 
the  subject ;  so  that  the  only  canon  now  in  existence  will  be 
found  under  Title  II.,  Canon  4,  §  1,  entitled  “Of  the  dis¬ 
solution  of  a  pastoral  connection.”  The  first  section  declares, 
“  In  case  a  Minister  who  has  been  regularly  instituted  or 
settled  in  a  Parish  or  Church,  be  dismissed  by  such  Parish 
or  Church,  without  the  concurrence  of  the  Ecclesiastical  au¬ 
thority  of  the  Diocese,  the  Vestry  *  *  *  shall  have  no  right 
of  representation  in  the  convention  of  the  Diocese,  until  they 
have  made  such  satisfaction  as  the  convention  majr  inquire ; 
but  the  minister  shall  retain  his  right  to  a  seat  in  the  con¬ 
vention,  subject  to  the  approval  of  the  Ecclesiastical  authority 
of  the  Diocese.” 

“  And  no  minister  shall  leave  his  congregation  against 
their  will,  without  the  concurrence  of  the  Ecclesiastical  au¬ 
thority  aforesaid ;  and  if  he  shall  leave  his  congregation 
against  their  will,  without  such  concurrence,  he  shall  not  be 
allowed  to  take  his  seat  in  any  convention  of  this  church,  or 
be  eligible  into  any  church  or  parish  until  he  shall  have  made 
such  satisfaction,  as  the  Ecclesiastical  authority  of  the  Diocese 
shall  require.” 

The  second  section  of  this  canon  provides  that  a  record 
shall  be  made  of  a  regular  and  canonical  dissolution,  and 
that  a  dissolution  not  regular  or  canonical,  shall  be  sub¬ 
mitted  to  the  Convention  of  the  Diocese. 


77 


“  This  canon  shall  not  he  obligatory  in  those  Dioceses  with 
whose  canons,  laws,  or  charters,  it  may  interfere.” 

“  It  will  be  observed,”  says  Dr.  Hawks,  in  his  work  hereto¬ 
fore  cited,  page  307,  that  “  this  canon  applies  to  nothing  hut 
the  single  case  of  a  desire  for  separation,  which  may  exist 
without  any  other  disagreement  between  the  parties.” 

It  may  be  further  declared  that  no  provision  is  made  for 
the  case  of  a  Minister  who  refuses  to  consent  to  a  dissolution. 
If  a  Parish  or  Church  act  without  Ecclesiastical  sanction,  or 
if  the  Minister  shall  leave  without  the  same,  a  penalt}^  fol¬ 
lows  and  may  be  inflicted ;  but  what  is  to  he  done  with  a 
church  law  which,  in  a  case  like  the  present,  prescribes  no 
duty  to  be  performed,  creates  no  offence,  and  affixes  no 
penalty. 

I  find  under  Title  II.,  Canon  2,  §  1,  of  Discipline,  a  series 
of  punishable  offences.  For  these  a  Presbyter  may  he  tried, 
and,  on  being  found  guilty,  “maybe  admonished,  suspended, 
or  degraded.” 

Is  the  refusal  to  consent  to  a  dissolution  an  offence  within 
the  meaning  of  this  canon  ?  If  so,  the  minister  must  be 
canonically  tried.  Any  other  doctrine  would  expose  any 
Presbyter  to  a  virtual  suspension  or  degradation,  when  and 
as  the  officials  of  the  Church,  ecclesiastical  and  lay,  might 
determine  to  strike  the  blow,  and  yet  lacked  either  the  cour¬ 
age  or  the  evidence,  or  both,  to  make  and  sustain  a  direct 
charge  or  accusation. 

The  remarks  are  not  intended  to  apply  to  these  defendants, 
nor  to  the  present  most  able,  eloquent,  and  worthy  incumbent 
of  the  Episcopal  chair;  they  are  intended,  however,  to  test 
the  true  meaning  of  this  canon  and  its  legal  effect. 

If  we  try  the  proceedings  of  the  Vestry  by  another  stand¬ 
ard,  we  will  find  their  action  altogether  untenable. 

Under  and  by  virtue  of  a  canon  in  force  in  this  Diocese,  a 
Presbyter  may  be  tried  for  certain  offences.  This  canon  was 
doubtless  adopted  under  the  authority  of  the  canon  already 
referred  to.  See  Tit.  I.,  Canon  2,  of  Discipline. 

Can  it  be  possible  that  any  Minister  may  he  summarily 
ejected  from  his  Parish  without  a  trial  ? 

Shall  the  civil  law  guarantee  to  the  humblest  citizen  a 


78 


hearing,  and  may  an  ordained  and  duly  instituted  Minister 
of  the  Protestant  Episcopal  Church  he  denied  a  right  as 
common  as  this  one  ?  * 

The  Standing  Committee  of  the  Diocese  of  New  York  did 
not  so  think  when  in  June,  1848,  they  acted  upon  a  case  of 
this  description,  after  a  copy  of  the  written  application  then 
made,  with  the  facts  and  reasons  upon  which  it  was  grounded, 
had  been  served  upon  the  Minister. 

The  Convention  of  the  Diocese  of  New  Jersey,  as  far  back 
as  June  6th,  1804,  did  not  think  so,  when  they  suspended 
action  until  a  canon  (now  repealed)  was  passed  to  meet  Dr. 
Ogden’s  case.  See  Hoffman’s  Law  of  the  Church,  p.  823. 
That  venerable  prelate,  whose  name  and  opinions  to  this 
day,  even  in  a  civil  Court,  carry  with  them  great  weight — 
I  mean  Bishop  White — did  not  so  believe,  when  in  speaking 
of  the  canon  enacted  to  meet  the  above  case,  he  questioned 
its  principle  on  the  ground  that  there  should  be  no  severance 
from  a  pastoral  charge  except  as  the  result  of  a  trial  for 
alleged  misconduct.  Memoirs  of  the  Church,  p.  191,  sup¬ 
posed  to  have  been  written  in  1820. 

In  the  “  Office  of  Institution  of  Ministers  ”  I  find  in  the 
form  of  the  “  Letter  of  Institution,”  which  a  Bishop  may  he 
the  rubric,  send  by  one  of  his  Presbyters,  whom  he  may  ap¬ 
point  as  the  institutor,  the  following  significant  senteuce : 
“  And  in  case  of  any  difference  between  }'0u  and  your  con¬ 
gregation,  as  to  a  separation  and  dissolution  of  all  sacerdotal 
connection  between  you  and  them,  we,  your  Bishop,  with  the 
advice  of  our  Presbyters,  are  to  be  the  ultimate  arbiter  and 
judge.”  IIow,  unless  by  a  hearing  and  trial?  At  law  and 
in  equity,  from  Baggs’  Case  to  the  present  day,  no  man  or 
men  can  be  condemned  against  his  or  their  consent  without 
a  hearing. 

But  we  must  go  one  step  further  and  endeavor  to  prove 
that  without  a  special  agreement,  or  in  the  absence  of  a  pro¬ 
vision  in  a  Church  Charter,  or  the  By-laws  adopted  by  virtue 
thereof,  the  tenure  by  which  a  Presbyter  in  the  Protestant 
Episcopal  Church  holds  bis  Rectorship,  is  by  no  means  un¬ 
certain. 

Special  provisions  in  a  Charter,  or  special  agreements  be- 


79 


tween  the  Rector  ancl  his  congregation,  become  the  law  of 
the  case.  In  England  the  tie  cannot  he  broken  except  by 
judicial  sentence,  or  resignation  to  and  acceptance  by  the 
ordinary.  Burns’  Eccl.  Law,  Yol.  III.,  p.  540. 

In  the  United  States,  conflicting  opinions  exist  among 
those  best  able  to  form  a  judgment  upon  the  subject. 

I  am,  however,  of  the  opinion,  that  under  the  existing 
laws  of  the  Church,  the  civil  contract  (except  as  hereinbefore 
specified)  cannot  be  broken  without  an  accusation  and  trial. 

This  opinion  is  based  in  part  upon  the  past  legislation  of 
the  Church ;  upon  the  expressed  views  of  more  than  one  of 
its  oldest  divines;  upon  the  opinions  of  men  learned  in  the 
law,  who  have  examined  the  subject ;  upon  the  attempts 
which  have  from  time  to  time  been  made  to  remedy  the 
difficulty  ;  and  upon  those  general  principles,  which  must,  in 
the  absence  of  express  authority,  govern  the  case.  In  1804  a 
canon  was  adopted  entitled  “  Of  Differences  between  Minis¬ 
ters  and  their  Congregations.”  A  canon  on  the  subject  was 
passed,  being  32d  of  1808,  with  an  additional  clause.  This 
clause  was  omitted  in  1832.  Canon  XXXIV.  of  General 
Convention  of  1832.  This  canon  provides  a  method  of  trial 
and  a  penalty.  In  1847,  the  Committee  on  Canons  proposed 
a  new  canon,  not  I  believe  adopted,  in  which  a  system  of 
arbitration  was  created.  The  original  canon  was,  in  1859, 
repealed  by  the  General  Convention  in  session  at  Richmond, 
Va.,on  motion  of  the  Rev.  Dr.  Stevens,  then  a  Presbyter  and 
now  the  Bishop  of  this  Diocese.  See  Journal  of  Convention 
of  1859,  pages  125-127.  An  unsuccessful  effort  was  made 
at  this  Convention  to  amend  the  old  canon.  See  Journal 
of  Convention,  p.  88,  for  report  of  Committee  on  Canons,  by 
Mr.  Iloffman. 

The  subject  in  1865  was  brought  before  the  Convention  of 
Ohio  by  the  Bishop,  and  that  prelate,  in  an  address,  notices 
as  a  sound  principle  that,  “  where  the  rights  and  interests  of 
both  Ministers  and  congregation  are  concerned,  the  body  to 
judge  should  be  composed  of  clergy  and  laity.” 

Bishop  White’s  opinion  has  already  been  referred  to,  while 
the  effort  of  Mr.  Hoffman  in  the  General  Convention,  and 
the  expressed  opinion  of  the  late  G.  M.  Wharton,  Escp,  (a 


/ 


80 


canonical  lawyer  of  acknowledged  ability,)  upon  the  case 
which  arose  in  Michigan,  (see  Hoffman’s  Eccl.  Law,  p.  270,) 
as  well  as  the  reported  views  in  the  last  cited  volume,  of  an 
eminent  Presbyter  of  this  Diocese,  Rev.  M.  A.  De  Wolfe 
Howe,  (whose  letter,  I  regret  to  say,  I  have  been  unable  to 
find,)  all  look  in  the  same  direction. 

The  legislation  now  repealed  embodied  the  views  of  the 
Church  upon  the  subject ;  the  efforts  made  to  amend  and  to 
repeal  the  existing  law  both  indicated  a  desire  either  to 
perfect  the  method  of  trial,  or  to  abolish  it,  aud  thus  make  a 
Minister  amenable  only  to  canonical  discipline  ;  the  expressed 
opinions  of  prelates,  presbyters,  and  conventions,  together 
with  the  views  of  prominent  laymen,  all  seem  to  take  it  for 
granted  that  in  some  method  a  trial  should  take  place,  and, 
in  default  thereof,  the  ministerial  bond  should  not  be  severed. 

Upon  general  principles,  the  views  already  expressed  in 
this  opinion  upon  other  points,  cover  the  proposition  now 
contended  for,  while  the  canon  which  declares  that  “  a  Min¬ 
ister  is  settled,  for  all  purposes,  here  or  elsewhere  mentioned 
in  these  canons,  who  has  been  engaged  permanently  by  any 
Parish,  according  to  the  rules  of  said  Diocese,  or  for  any  term 
not  less  than  one  year,”  (Tit.  I.,  Canon  13,  §  2,  of  Digest  of 
Canons,)  would  seem  to  indicate  the  sense  of  the  Church  to 
be :  First,  That  a  settlement  should  not  exist  for  a  shorter 
term  than  one  year ;  and,  Second ,  That  unless  some  special 
agreement,  or  the  terms  of  a  Charter  or  By-laws  prohibit,  it 
may  be  indefinite. 

Having  thus  considered  the  facts  aud  law  of  the  case,  it 
becomes  my  duty  to  act  according  to  the  dictates  of  my 
judgment  and  conscience. 

It  is  very  evident  that  the  interests  of  this  Corporation  are 
endangered  by  internal  difficulties  of  which  I  cannot  speak, 
because  I  have  no  judicial  knowledge  of  their  nature.  Be 
the  causes  what  they  maj',  it  is  certain  that  a  house  divided 
against  itself  cannot  stand.  I  therefore  officially  recommend 
some  amicable  adjustment  of  existing  difficulties.  Should 
an  intimation  to  that  effect  be  made,  I  will  at  once  modify 
or  suspend  the  operation  of  the  order  about  to  be  recorded. 

The  usefulness  of  the  Rector  and  his  Assistant  will  be 


81 


greatly  promoted,  and  the  peace  of  Vestry  and  parishioners 
re-established  should  the  course  suggested  be  adopted ;  and 
this  is  not  an  expression  of  individual  opinion  (which  can 
have  no  place  here),  but  of  a  judge  clothed  with  the  powers 
of  a  chancellor,  about  to  exercise  a  most  delicate  prerogative; 
not,  indeed,  thereby  to  encourage  insubordination,  or  wilful 
disregard  of  Ecclesiastical  authority,  canonically  invoked,  but 
only  to  prevent  remediless  injury. 

The  first  prayer  for  relief  canuot  be  granted  at  this  stage 
of  the  cause ;  nor  will  I  grant  the  second  prayer  in  the  bill 
contained,  because  the  injunction  would  be  mandatory. 

The  plaintiffs  are,  however,  entitled  to  relief  as  prayed  for 
in  the  third  prayer  of  the  bill ;  and  it  is  therefore  ordered, 
adjudged,  and  decreed  that  the  preliminary  injunction  here¬ 
tofore  granted  be  continued  until  the  further  order  of  this 
Court,  and  that  the  defendants,  their  agents  and  servants  be 
restrained  from  interfering  in  any  way  with  the  exercise  by 
the  Rev.  TI.  GL  Batterson,  of  his  office  of  Rector,  and  with 
the  exercise  by  the  Rev.  W.  H.  V.  Stewart,  of  his  office  of 
Assistant  Minister,  in  St.  Clement’s  Church  in  Philadelphia, 
until  a  regular  and  canonical  dissolution  of  the  connection 
now  existing  between  them  and  the  congregation  of  said 
Church,  shall  take  place  in  accordance  with  the  Constitution 
and  Canons  of  the  Protestant  Episcopal  Church  in  Penn¬ 
sylvania,  and  in  the  United  States. 


The  following  is  a  copy  of  Bishop  Stevens'  letter  of 
concurrence. 


Diocese  of  Pennsylvania, 
Episcopal  Rooms, 


70S  Walnut  Street, 

Philadelphia,  May  4, 1871. 

Henry  S.  Lowber,  Esq., 

Secy  Vestry  of  St.  Clement's  Church ,  Philadelphia. 

Dear  Sir  : — In  reply  to  your  official  note  of  the  3d  inst., 
enclosing  certain  resolutions  of  the  Vestry,  I  beg  leave  to 
say  that  the  Ecclesiastical  authority  of  the  Diocese  concurs 
with  the  action  taken  by  the  Vestry  in  dissolving  the  pasto¬ 
ral  connection  between  it  and  the  Minister  and  Assistant 
Minister  of  St.  Clement’s  Church. 

Very  respectfully  yours, 

Wm.  Bacon  Stevens, 

Bishop  of  the  P.  E.  Church , 
Diocese  of  Penna. 


APPENDIX  I. 

Supreme  Court  of  New  Jersey. 

WILLIAM  J.  LYXD  v.  GEORGE  MENZIES,  JOHN  II. 
SUYDAM,  AND  OTHERS. 

This  was  an  action  on  the  case  for  forcibly  preventing  a 
Minister  from  preaching  iu  the  Church  and  occupying  the 
parochial  school-house.  Upon  the  trial  the  following  facts 
were  elicited.  By  a  deed  dated  1st  October,  1853,  Cyrus 
Peck  and  wife  conveyed  the  lot  upon  which  the  church  and 
school-house  are  now  erected,  to  the  Rectors,  Wardens,  and 
Vestrymen  of  the  Church  of  St.  Barnabas,  Roseville,  in  the 
city  of  Newark,  in  fee,  upon  the  condition  that  a  church  and 
school-house  should  be  erected  thereon,  and  which  church 
edifice  should  be  consecrated,  appropriated,  and  devoted  for¬ 
ever  exculsively  to  the  service  of  Almighty  God,  according 


83 


to  the  doctrine,  discipline,  and  worship  of  the  Protestant 
Episcopal  Church  in  the  United  States  of  America.  At  the 
time  of  this  conveyance  the  said  Church  was  not  incorporated, 
and  did  not  become  so  until  after  the  expulsion  of  the  minis¬ 
ter,  as  herein  after  stated. 

On  the  23d  July,  1855,  this  church  was  consecrated  by  the 
Bishop  of  the  Diocese  of  ISTew  Jersey,  and  from  that  time 
forward  the  congr elation  continued  its  organization.  In 
December,  1861,  the  plaintiff  accepted  a  call  to  the  Rectorship 
of  this  church,  and  in  the  month  of  June,  1862,  was  duly 
instituted.  It  appeared  that  the  plaintiff,  in  common  with 
the  other  officers  of  the  Church,  supposed  the  Church  had 
been  incorporated  and  that  various  corporate  acts  were  per¬ 
formed.  Before  his  call,  the  Church  had  claimed  and  been 
conceded  ecclesiastical  rights  which  pertained  to  incorporated 
churches  only;  after  the  call  of  the  plaintiff,  a  school-house 
was  put  up  on  the  church  lot,  and  he  was  placed  in  possession. 
On  the  27th  April,  1867,  the  plaintiff  received  a  note  from 
two  of  the  defendants,  who  were  the  Wardens  of  the  Church, 
notifying  him  that  on  Easter  Day,  which  was  then  passed, 
his  connection  as  Rector  with  the  church  had  ceased.  On  the 
next  day,  which  was  Sunday,  when  the  plaintiff  went  to  the 
Church  to  officiate  he  found  the  Church  closed,  the  doors  being 
fastened,  so  as  to  prevent  his  entering.  In  a  few  days  after¬ 
wards  he  was  in  a  similiar  manner  excluded  from  the  school- 
house.  It  Avas  proved  that  such  expulsions  were  the  acts  of 
the  defendants,  two  of  whom  were  Wardens  and  the  others 
V  estry  men  of  the  Church.  The  question  of  laAV  as  to  the  right 
of  the  plaintiff  to  recover  Avas  reserved,  and  the  matter  of 
damages  submitted  to  the  iury,  avIio  returned  a  verdict 
for  $1,000. 

The  case  came  before  this  Court  on  a  motion  for  a  neAV 
trial. 

C.  Parker  and  Charles  Borcherling ,  Jr.,  for  plaintiff. 

Joseph  P.  Bradley ,  for  defendants. 

Beasley,  C.  J. — The  motion  for  a  new  trial  in  this  case  is 
rested  on  two  grounds,  viz. :  first,  that  the  proofs  will  not 


84 


sustain  an  action  at  law;  second,  that  the  damages  are 
excessive. 

On  the  first  of  these  heads  the  ground  taken  is,  that  at  the 
time  when  the  plaintiff  became  the  Rector  of  this  congrega¬ 
tion,  and  also  at  the  time  of  the  transaction  complained  of, 
the  congregation  was  not  incorporated.  From  this  fact  it 
was  urged  that  the  title  under  the  deed  from  Mr.  Peck  could 
not  pass  out  of  him  for  the  want  of  a  competent  grantee  to 
take  it,  and  that  the  members  of  the  congregation  were  in 
possession  of  these  premises  as  tenants  in  common  by  suffer¬ 
ance,  and  that,  consequently,  such  rights  in  the  realty  as 
ordinarily  pass  to  the  Rector  under  a  regular  organization, 
did  not  in  the  present  case  vest. 

So  far  as  the  law  has  to  do  with  the  relationship  of  the 
Rector  with  his  flock,  such  relationship  is  to  be  regarded  as 
the  effect  of  a  contract. 

What,  then,  is  the  agreement  into  which  a  congregation 
of  this  denomination  of  Christians  enters  upon  the  call  of  a 
Rector?  So  far  as  touches  the  matter  in  controversy,  it 
plainly  appears  to  be  this  :  They  otter  to  the  Minister  re¬ 
ceiving  the  call  such  rights  in  their  temporalities  as  by  the 
Ecclesiastical  law  of  their  sect,  belong  to  the  office  which  is 
tendered,  one  of  such  rights  being  that  of  preaching  on  Sun¬ 
days  in  the  Church  provided  by  the  congregation.  Such  an 
otter,  therefore,  can  have  nothing  to  do  with  the  title  to  the 
Church  edifice.  .No  matter  in  whom  the  title  may  reside,  if 
the  congregation  has  the  use  of  the  building,  the  Rector 
must  of  necessity  have  the  right  to  partake  in  such  use. 
The  agreement  is  not,  as  the  argument  on  the  part  of  the 
defendants  assumed,  that  the  Rector  is  to  possess  this  class 
of  privileges  in  these  temporalities  of  which  the  congregation 
is  the  absolute  owner.  Put  to  the  contrary,  whatever  place 
the  congregation  provide  for  the  purpose  of  public  worship 
in  the  Parish,  into  such  place  the  Rector,  by  virtue  of  his 
office,  has  the  right  to  enter  in  order  to  conduct  such  wor¬ 
ship.  I  have  failed,  therefore,  to  perceive  how  the  fact  of 
title  to  the  Church  premises  in  question  is  to  affect,  the  legal 
result  in  this  case.  In  the  view  which  I  take  of  the  under¬ 
standing  between  these  parties,  it  cannot  matter  at  all 


85 


whether  or  not  the  congregation  had  any  interest  in  these 
premises  other  than  a  right  to  the  occupation  of  them  for 
the  purpose  of  Divine  service  on  the  Sunday  of  the  expul¬ 
sion  ;  because,  if  on  that  occasion  this  building  was  the  place 
set  apart  by  the  congregation  for  their  religious  exercises,  then 
it  necessarily  follows  that  the  plaintiff  at  that  time,  virtate 
officii,  had  the  legal  right  to  be  present  and  to  conduct  the 
worship.  But  the  case  in  reality  is  much  stronger  in  favor 
of  the  plaintiff  than  this.  This  Church  property  was  put 
into  the  possession  of  this  congregation  for  their  denomina¬ 
tional  uses  by  Mr.  Peck,  the  owner  of  the  fee ;  they  had 
erected  their  Church  upon  it,  and  thus  complied  with  the 
conditions  of  the  grant ;  it  is  true  the  title  at  law  was  de¬ 
fective,  but  it  is  also  true  that  their  title  in  equity  was  com¬ 
plete.  This  Church,  thus  built,  had  beeu  consecrated  bjT  the 
Bishop  of  the  Diocese,  and  by  institution,  performed  with  all 
due  Ecclesiastical  formalities,  the  plaintiff  had  been  placed 
in  charge  of  the  spiritual  affairs  of  the  Church;  the  congre- 
tion  remained  in  full  possession  of  the  Church  edifice,  and 
neither  Mr.  Peck  nor  any  one  else  called  such  possession  in 
question.  Under  the  circumstances,  bow  is  it  possible  that 
these  defendants,  who  claim  to  be  the  representatives  of  the 
congregation,  can  deny  the  rights  of  the  Rector  as  to  these 
premises  on  the  ground  of  the  inferiority  of  their  own  title ? 
Suppose  we  regard  them  as  mere  tenants  at  sufferance,  will 
that  fact  enable  them  to  put  an  end  to  the  rights  of  the 
plaintiff  in  this  property?  If  such  were  their  position,  the 
only  effect  would  be  to  make  both  their  own  rights  and 
those  of  the  Rector  dependant  on  the  will  of  the  owner  of 
the  land.  But  it  certainly  would  be  contrary  to  all  principle 
to  permit  a  party  in  possession  of  real  property  to  grant  an 
interest  in  it  to  another,  and  then  defeat  such  interest  on 
the  ground  of  his  own  inability  to  make  such  grant.  The 
rule  that  a  party  cannot  derogate  from  his  own  grant  is  one 
of  universal  efficacy,  and  applies  in  a  very  direct  manner  to 
the  present  case.  JSTor  is  there  anything  in  the  suggestion 
that  the  usual  rights  touching  the  temporalities  which  vest 
in  the  Rector,  could  not  be  obtained  by  him  in  the  present 
instance,  on  account  of  the  imperfection  of  the  Ecclesiastical 

7 


organization  of  this  congregation.  The  imperfection  relied 
on  was  the  absence  of  an  incorporation.  But  the  want  of  this 
quality  does  not  at  all  affect  the  rights  and  duties  of  pastor 
and  people  towards  each  other;  the  effect  of  becoming  in¬ 
corporated  is  to  facilitate  the  acquisition  and  transfer  of 
property,  and  to  enable  the  congregation  to  be  represented 
in  the  Convention  of  the  Diocese:  Article  V.  of  Constitution 
of  P.  E.  C.  of  Diocese  of  iSTew  Jersey.  But,  by  the  canoni¬ 
cal  law  of  this  denomination  of  Christians,  it  is  not  neces¬ 
sary,  in  order  to  constitute  a  Church,  that  the  congregation 
should  take  the  form  of  an  incorporated  body.  Indeed,  the 
very  law  of  this  State,  which  provides  for  the  incorporation 
of  this  class  of  churches,  presupposes  and  requires  that  there 
shall  be  antecedent  to  the  inception  of  proceedings  “  a  con¬ 
gregation  of  the  Protestant  Episcopal  Church  in  this  State 
duly  organized,  according  to  the  constitution  and  usages  of 
said  church Act  of  1829.  In  the  case  now  before  us,  it 
plainly  appears  that  this  Church  was  constituted  in  con¬ 
formity  to  the  Ecclesiastical  law  and  usages  applicable  to  it  > 
and  the  consequence  is,  that  the  plaintiff,  by  his  official  con¬ 
nection  with  it,  acquired  all  the  customary  powers  and 
privileges  pertaining  to  the  Rectorship. 

But  there  was  a  second  objection  taken  on  the  argument, 
which  was,  that  on  the  assumption  of  the  existence  of  the 
right  of  the  Rector  to  the  privileges  claimed  by  him,  still  it 
was  said,  an  innovation  or  disturbance  of  such  rights  would 
not  constitute  the  ground  of  a  suit  at  law. 

I  cannot  yield  my  assent  to  this  proposition.  The  nature 
of  the  right  in  question  forbids  such  a  result.  I  think  it  is 
clear  that,  in  right  of  his  office,  a  Rector,  by  force  of  the  law 
of  this  Church,  has  either  the  possession  of  the  Church  edifice, 
or  has  a  privilege  which  enables  him  to  enter  into  it — such 
privilege  being  in  the  nature  of  an  easement.  Mr.  Murray 
Hoffman,  in  his  learned  and  interesting  treatise  on  the  law 
of  the  Protestant  Episcopal  Church  in  the  United  States, 
page  266,  in  remarking  on  the  effect  of  the  incorporation  of 
churches,  states  his  views  in  these  terms,  viz. :  u  The  title 
then  to  the  church  and  all  church  property  is  in  the  trustees, 
collectively,  for  all  corporate  purposes;  but  there  is  another 


87 


class  of  purposes  purely  Ecclesiastical,  hs  to  which  the  statute 
did  not  mean  to  interfere  or  prescribe  any  rule.  These  are 
to  he  controlled  by  the  law  of  the  church.”  And  the  con¬ 
clusion  to  which  he  comes  is  thus  stated :  “  That  the  control 
and  possession  of  the  Church  edifice  upon  Sundays,  and  at  all 
times  when  open  for  Divine  services,  appertains  exclusively 
to  the  Rector.”  I  have  no  doubt  with  regard  to  the  correct¬ 
ness  of  this  view.  By  the  English  Ecclesiastical  law,  which, 
although  somewhat  modified  by  new  circumstances  and  by 
American  usages  and  statutes,  constitutes  the  substantial 
basis  of  the  law  controlling  the  affairs  of  this  particular 
Church,  the  possession  of  the  Church  and  churchyard  is  in 
the  incumbent ;  nor  does  it  make  any  difference  in'  this  re¬ 
spect,  in  whose  hands  the  title  to  the  religious  property  is 
lodged,  as  for  example,  in  case  the  freehold  of  the  Church 
and  churchyard  is  in  the  Rector,  nevertheless,  the  curate  will 
be  deemed  in  possession  for  all  Ecclesiastical  purposes.  In 
exemplification  of  this  rule,  I  refer  to  an  interesting  discus¬ 
sion  of  the  question  in  Greenslade  v.  Darby ,  decided  during 
the  present  year  by  the  Court  of  Queen’s  Bench,  Law  Rep.  8 
Q.  B.  421.  “  I  quite  agree  with  the  former  decisions.”  Such 

is  the  declaration  of  Chief  Justice  Cockburn,  that  an  incum¬ 
bent  has  possession  of  the  churchyard  as  well  as  of  the  Church 
for  all  spiritual  purposes ;  therefore  for  burials,  and  for  all 
purposes  attached  to  his  office,  he  has  undoubtedly  uncon¬ 
trolled  possession  of  the  churchyard.  To  the  same  purpose 
is  the  rule  laid  down  by  Cripps  in  his  treatise  on  the  Church 
and  Clergy,  page  158.  See,  also,  1  Burns’  Ecclesiastical  Law, 
877 ;  /Stocks  v.  Booth ,  1  T.  R.  428.  If,  then,  we  adopt  this 
theory,  and  I  perceive  no  reason  for  rejecting  it,  that  for  the 
purpose  of  the  exercise  of  his  sacerdotal  functions,  the  Rector 
becomes  possessed  of  the  Church  buildings  and  grounds,  it 
will  be  difficult  to  devise  any  pretext  in  denial  of  the  right 
of  such  officer  to  a  civil  remedy  if  such  possession  he  invaded. 
Ror  does  the  right  to  redress  for  an  interference  with  his 
rights,  seem  less  clear,  if  we  adopt  the  hypothesis,  that  by 
force  of  his  position  the  plaintiff  was  possessed  of  an  ease¬ 
ment  in  these  premises.  Such  a  privilege  would  not  be  un¬ 
like  in  kind  to  a  right  to  the  occupation  of  a  pew  in  a  Church ; 


88 


and  of  this  latter  right  in  the  case  of  The  Presbyterian  Church 
v.  Andruss ,  1  Zabriskie  328,  Chief  Justice  Green  remarks,  it 
“  is  an  incorporeal  hereditament.  It  is  in  the  nature  of  an 
easement,  a  right  or  privilege  in  the  lands  of  another.  For 
an  interruption  of  this  right,  an  action  on  the  case  for  a  dis¬ 
turbance,  as  in  other  cases  of  injury  to  incorporeal  heredita¬ 
ments,  is  the  only  remedy.”  Regarding,  then,  the  Rector’s 
interest  in  the  Church  edifice  as  a  mere  right  to  enter,  and 
while  there  to  discharge  certain  functions,  I  am  unable  to 
distinguish  it,  in  its  substantial  essence,  from  the  right  of  the 
pew  holder.  The  right  of  the  latter  is  obviously  no  more 
secular  in  its  character  than  the  former;  both  the  pew-holder 
and  the  Minister  attend  to  the  end  of  religious  worship  and 
edification,  and  as  the  pew-holder  has  a  remedy  at  law  for  a 
disturbance  of  his  privilege,  it  would  seem  to  be  preposterous 
to  deny  it  to  a  Minister  lor  a  like  wrong.  Upon  principle, 
then,  I  think,  the  present  action  is  to  be  vindicated,  and  for 
a  precedent  I  refer  to  the  case  of  Pliillybrowne  v.  Ryland ,  8 
Mod.  352,  2  Strange  G24,  in  which  it  was  decided  that  an 
action  would  lie  on  behalf  of  a  Parish  over  against  the  clerk 
of  the  Vestry,  for  shutting  the  Vestry-door  and  keeping  the 
plaintiff'  out,  so  that  he  could  not  come  in  to  vote.  The  rule 
of  decision  in  this  case  appears  to  he  indistinguishable  from 
that  which  is  called  for  by  the  one  now  before  us. 

Adopting,  therefore,  either  of  the  views  above  indicated, 
viz.,  that  the  plaintiff'  was  in  possession,  or  that  lie  had  a 
right  to  enter  on  special  occasions,  the  interference  with 
either  of  such  interests  affords  a  right  of  suit ;  the  mere  fact 
that  the  form  of  action  would  be  variant  if  we  adopt  one  or 
the  other  theory,  cannot  affect  this  case  on  the  present  motion, 
as  the  real  question  in  controversy  between  the  parties  has 
been  tried,  and  consequently  by  force  of  the  provision  of  our 
present  Practice  Act,  the  mode  of  suit  is  now  alterable,  so  as 
to  conform  to  the  legal  view  which  the  Court  may  adopt. 

Influenced  by  these  considerations,  I  have  concluded  that 
the  plaintiff’s  right  of  action  is  sustained  by  the  proofs  in  the 
case. 

On  the  second  head  my  judgment  is  also  in  favor  of  the 
plaintiff;  the  damages  are  undoubtedly  large,  but  this  ques- 


89 


tion  was  left  fairly  to  the  jury,  and  there  is  no  reason  to 
suppose  that  they  were  in  any  respect  subjected  to  any  sin¬ 
ister  influence.  The  defendants  acted  with  great  indiscre¬ 
tion  ;  their  conduct  was  oppressive,  and  whatever  their 
intentions  may  have  been,  it  was  calculated  to  wound  and 
injure  the  plaintiff. 

The  verdict  should  not  be  disturbed. 


V 


APPENDIX  II. 

The  case  of  the  Rev.  Milton  C.  Lightner,  Rector  of  St. 
Paul’s  Church,  Detroit,  Michigan. 

Shortly  after  the  Easter  election  in  the  year  1866,  it  was 
found  that  the  Vestry,  which  was  composed  of  old  and  new 
members,  were  unanimous  in  their  desire  to  get  rid  of  the 
Rector  of  the  Church.  They  met  and  passed  resolutions  of 
dismissal,  and  referred  them  to  the  Bishop  for  his  concur¬ 
rence.  Thereupon  the  congregation  rose  and  took  steps  to 
prevent  the  Vestry  from  carrying  out  their  designs.  They 
immediately  prepared  a  letter  of  confidence  in  their  Rector, 
which  was  signed  by  a  large  majority  of  them.  It  was  in¬ 
tended  to  present  it  to  the  Vestry,  but  this  was  not  done, 
as  they  had  already  informed  the  congregation  that  they 
did  not  hold  themselves  amenable  to  them,  upon  the 
ground  that  “  ours  is  not  a  Congregational  Church.”  The 
Bishop  also  expressed  similar  views.  The  paper,  however, 
was  sent  to  the  Bishop,  time  having  been  allowed  them  before 
he  acted,  together  with  a  letter  requesting  him  to  avert  the 
calamity  hanging  over  them. 

The  congregation  thought  the  Church  “  Congregational” 
to  the  extent  of  there  being  a  congregation  recognized  by 
its  constitution  ;  and  warned  of  the  antagonism  of  the  Bishop 
to  the  Rector,  they  determined  to  move  in  their  own  self-de¬ 
fence,  and  instituted  measures  to  hold  another  election,  on 
the  ground  of  the  election  of  the  Vestry  having  been  irregular 
and  unlawful.  Notice  of  this  election  was  read  from  the 


90 


chancel  on  Sunday,  the  26th  of  August,  and  would  have 
been  repeated  on  the  next  Sunday,  hut  the  Bishop,  who  had 
called  together  his  Standing  Committee  on  the  23d  of  August, 
and  adjourned  them  to  the  3d  of  September,  got  them  to¬ 
gether  on  the  29th  of  August,  and  on  the  next  day  Mr. 
Lightner  received  the  following  letter: 


Detroit,  August  30, 1866. 

Rev.  M.  C.  Lightner, 

Sir  : — I  am  instructed  to  inform  you  that  you  have  been 
dismissed  from  the  Rectorship  of  St.  Paul’s  Church,  in  the 
city  of  Detroit,  and  that  the  Ecclesiastical  authority  of  the 
Diocese  of  Michigan  has  concurred  in  such  dismissal ;  and  to 
notify  on  henceforth  to  refrain  from  using  the  Church  build¬ 
ing.  I  am  also  instructed  to  inform  3'ou  that  if  3tou  desire 
to  remain  for  the  present  in  the  parsonage  house,  you  can 
do  so  until  it  is  needed  for  a  new  Rector,  free  of  charge.  I 
enclose  the  sum  of  $208.33,  which  would  have  been  due  to 
3’ou,  had  your  incumbency  continued  until  October  1st. 

B.  VERNOR, 

Secretary  Vestry ,  St.  Paul’s  Church ,  Detroit. 

On  the  6th  of  September,  the  day  when  the  new  election 
was  to  he  held,  the  congregation  repaired  to  the  Church,  but 
they  found  the  doors  locked  and  barricaded.  The  election 
was  held  upon  the  sidewalk,  and  resulted  in  the  choice  of 
two  Wardens  and  eight  Vestrymen  as  required  the  Char¬ 
ter.  (The  objection  to  the  Easter  election  was  that  ten  Ves- 
tiymen  and  no  Wardens  were  elected,  and  that  this  rendered 
the  election  illegal  and  void.)  The  old  Vestry  held  on  to 
their  positions,  whereupon  a  writ  of  quo  warranto  was  issued 
against  them.  Upon  their  demurrer  to  the  information, 
judgment  was  rendered  in  their  favor. 

Mr.  Lightner,  as  late  as  March,  1867,  remained  in  posses¬ 
sion  of  the  rectoiy,  retained  the  Parish  register,  and  per¬ 
formed  the  duties  of  his  office  outside  of  the  Church  edifice, 
from  which  he  was  excluded  by  force,  lie  filed  a  protest 
with  the  Bishop  against  the  interference  by  aiy  other  Min¬ 
ister  with  his  rights  and  prerogatives  as  Rector  of  St.  Paul’s 


91 


( 


Church.  He  also  took  counsel  upon  his  rights  in  the  matter, 
ancl  received  the  following  replies  : 

Philadelphia,  December ,  31,  1866. 

Rev.  M.  C.  Lightner, 

Detroit,  Michigan  : 

I  am  clearly  of  the  opinion  that  a  Vestry  has  no  right  to  dis¬ 
miss  a  Rector,  and  thus  dissolve  the  pastoral  Relation,  with¬ 
out  accusation  or  trial ;  and  further,  I  am  of  opinion  that 
any  accusation  or  trial  must  be  in  accordance  with  the 
Ecclesiastical  law  of  the  communion  to  which  the  parties 
belong. 

The  legislation  of  1865  prevents  the  dismissal  of  a  Minis¬ 
ter  by  a  Vestry,  with,  the  assent  of  the  Bishop,  from  being 
uncanonical,  and  relieves  the  parties  from  the  penalties  of 
the  canon.  I  do  not  think,  however,  that  it  makes  good  a 
dismissal  of  the  Rector  without  accusation  or  trial ;  or  that 
it  dissolves  the  contract  between  him  and  the  Parish.  Such 
a  result  would  be  in  violation  of  general  principles ;  and,  I 
think,  therefore,  that  the  law  of  1865  should  be  construed  in 
subordination  to  these. 

I  give  this  opinion,  with  a  saving  of  what  the  law  of 
Michigan  or  the  Charter  of  the  Church  may  prescribe.  I 
have  not  seen  either  of  them. 

Very  sincerely  and  respectfully  yours, 

G-.  M.  WHARTOK 


Philadelphia,  March  18, 1867. 

The  Rev.  Milton  C.  Lightner, 

Rev.  and  Dear  Sir: — I  have  before  me  your  request  for 
a  written  opinion  upon  “the  right  of  a  Vestry  to  dismiss  a 
Rector  without  accusation  or  trial.”  With  the  facts  in  any 
particular  case  which  you  may  have  in  your  mind,  I  am 
unacquainted  ;  and  if  it  were  otherwise  I  should  be  reluctant 
to  meddle,  unless  it  were  made  my  official  duty.  In  what  I 
shall  say,  therefore,  I  wish  to  be  understood  as  dealing  with 
an  abstract  question. 


92 


In  Canon  4,  of  Title  II.,  which  is  the  only  one  contained  in 
the  Digest,  bearing  on  the  subject  “  Of  the  dissolution  of  a 
pastoral  connection,”  it  may  he  observed  that  a  Minister 
regularly  settled  in  a  Parish  or  Church,  is  brought  under  the 
same  provision  as  one  regularly  instituted ,  from  which  use 
of  terms,  I  would  understand  that  the  Church  in  these 
United  States,  regards  a  Minister  when  settled  as  having  the 
same  rights  and  duties  and  occupying  the  same  status  before 
the  law  as  when  instituted. 

Turning  then  to  the  “  Office  of  Institution  ”  in  the  pre¬ 
scribed  Letter  of  Institution,  we  find  it  provided  that  due 
notice  of  a  wish  on  either  part  to  dissolve  the  sacerdotal 
relation  between  the  Minister  and  the  congregation,  is  to  be 
given  to  the  Bishop ;  and  in  case  of  any  difference  between 
the  parties  as  to  a  separation,  the  Bishop  with  the  advice  of 
his  Presbyters  is  to  lie  the  ultimate  arbiter  and  judge. 

Let  me  here  take  occasion  to  say,  that  the  Prayer  Book  is 
of  higher  authority  than  the  Canons,  and  that  they  are 
rather  to  be  interpreted  by  it  than  it  by  them.  The  “  Eccle¬ 
siastical  authority,”  which  is  to  take  cognizance  of  the 
dissolution  of  a  pastoral  connection,  is,  we  learn  from  the 
“  Institution  Office,”  not  the  Bishop  alone,  but  the  Bishop  and 
his  Presbyters,  and  the}’  are  to  proceed  in  the  consideration 
of  any  case,  after  the  ways  directed  and  obviously  implied 
in  the  Letter  of  Institution.  That  this  is  indeed  so  appears 
from  the  history  of  our  legislation. 

The  “  Office  of  Institution  ”  was  adopted  in  1804,  and  set 
forth  with  alterations  in  1808.  Simultaneously  was  adopted 
a  canon,  (modified  also  in  1808,)  entitled  “  Of  Difference  be¬ 
tween  Ministers  and  their  Congregations,”  and  which  begins 
with  the  following  language:  “In  cases  of  controversy  be¬ 
tween  Ministers  who  now  and  may  hereafter  hold  the  Rec¬ 
torship  of  Churches  or  Parishes,”  etc.  This  canon  provides 
that  application  shall  be  made  by  one  or  both  the  parties  to 
the  Bishop  of  the  Diocese,  and  that  he  shall  summon  all  the 
Presbyters  of  the  Diocese ;  and  that  if  it  shall  appear  to  the 
Bishop  and  a  majority  of  the  Presbyters  assembled,  after  such 
general  summons,  that  the  differences  are  irreconcilable,  and 
that  a  dissolution  of  the  connection  is  indispensably  necessary, 


93 


he  and  his  said  Presbyters  shall  recommend  to  said  Ministers 
to  relinquish  their  titles,  on  such  conditions  as  may  appear 
reasonable  and  proper  to  the  Bishop,  etc.  How  it  is  evident 
that  the  Canon  and  the  Office  of  Institution,  were  fash  oned 
in  conformity  with  one  another,  and  that  the  Canon  gives  to 
Ministers  who  “  hold  Rectorships,”  the  same  protection  which 
the  officer  gives  to  the  Instituted.  In  both  it  is  contem¬ 
plated  that  the  matter  of  difference  between  a  Minister  and 
a  congregation,  shall  he  considered  by  the  Bishop  and  his 
Presbyters,  with  a  view,  if  possible,  to  reconcilement ;  and  that 
the  separation,  if  it  takes  place,  shall  do  so  in  conformity  to 
their  recommendation  and  on  terms  prescribed  by  them. 

All  this  implied  investigation  involves  the  appearance  of 
both  parties  before  the  Ecclesiastical  tribunal.  Indeed  if 
there  were  no  such  implication,  the  settled  principle  of  jus¬ 
tice,  which  now  obtains  in  all  civilized  countries,  would  re¬ 
quire  that  before  a  man  be  condemned  and  suffer  harm,  he 
stand  before  the  Court  face  to  face  with  his  accusers,  and 
enjoy  the  opportunity  to  hear;  and,  if  he  can,  refute  their 
allegations. 

I  know  it  may  be  said  that  the  canon  to  which  I  have 
referred  was  repealed  by  Canon  2  of  Title  IV.  of  the  Digest. 
In  point  of  fact  it  was,  but  in  the  intention  of  the  General 
Convention  it  was  not.*  In  1856  a  committee  was  appointed 
to  prepare  a  Digest  of  all  the  Canon  law  of  the  Protestant 
Episcopal  Church  ;  that  is,  to  codify,  arrange  and  harmonize 
existing  laws — not  to  make  any,  not  to  expunge  any.  At 
the  General  Convention  of  1859,  that  committee  made  its 
report.  Preliminary  to  their  recommendation  that  the  Digest 
be  adopted,  they  gave  in  their  report  the  following  assur¬ 
ances  :  “  The  committee  have  also  from  a  minute  comparison 
satisfied  themselves  that  no  part  of  existing  canons  have  been 
omitted.” 

The  General  Convention  proceeded  to  accept  and  credit 
the  Digest  on  the  assurance  thus  given,  that  it  contained 
every  distinct  provision  which  had  been  up  to  that  moment 
in  the  canon  law  of  the  Church. 

*  Dr.  Hove  lias  since  stated  that  he  was  in  error  on  this  point,  although 
it  in  no  way  invalidates  or  weakens  his  argument. 


94 


If  the  features  of  the  canon  “  Of  differences  between  Min¬ 
isters  and  their  congregations,”  are  not  to  be  found  in  the 
Digest,  they  have  been  unwittingly  omitted.  The  Church  has 
never  determined  to  repeal  them. 

However  the  question  of  their  binding  force  might  he 
settled  by  a  civil  Court,  I  think  I  have  shown  by  a  refer¬ 
ence  to  the  canon  which  contained  them,  and  the  contempo¬ 
raneous  language  of  the  Office  of  Institution,  that  the 
bonds  declared  in  that  office,  are  in  the  Church  regarded  as 
inhering  in  the  relation  of  a  settled  Minister  and  his  congre¬ 
gation,  and  that  neither  party  can  dissolve  the  connection 
without  consent  of  the  other;  that  in  case  of  differences,  the 
matter  must  be  brought  before  the  Bishop  ;  that  he  must 
convene  a  Council  of  Presbyters  to  consider  with  him  before 
the  fact ,  the  expediency  of  separation  ;  that  they  must  effect 
reconciliation  if  possible,  and  if  not,  determine  terms  and 
conditions  of  dissolution,  which  the  parties  must,  under  pen¬ 
alty,  accept. 

To  make  this  process  just,  it  is  indispensable  that  the  con¬ 
testants  appear  face  to  face  befoi'e  the  proper  tribunal. 

And  without  these  conditions  any  attempted  severance 
of  the  pastoral  relation  by  one  of  the  parties  to  it,  contrary 
to  the  will  of  the  other,  is  against  the  good  order  of  the 
Church,  besides  being  a  violation  of  the  common  law  in  all 
constitutional  government — that,  no  man  shall  be  condemned 
unheard.  Local  diocesan  canons  may  differ  in  detail  from 
the  canons  of  the  general  Church.  In  what  I  have  written 
I  have  not  taken  them  into  account. 

If  every  Rector  were  removable  at  the  caprice  of  his 
4  estry,  sanctioned  by  an  ex  parte  presentation  of  their  case 
before  the  Bishop,  we  should  be  in  a  pitiable  condition. 

Very  truly, 

Your  brother  in  Christ, 

M.  A.  DE  4VOLFE  IIOWE. 


95 


APPENDIX  III. 

A  statement  of  the  case  of  the  Pev.  William  Rawlins 
Pickman,  Rector  of  St.  Peter’s  Church,  Salem,  Massachusetts. 

Mr.  Pickman  was  Rector  of  St.  Peter’s  Church,  and  on 
April  18th,  1865,  received  the  following  communication: 

Easter  Tuesday,  April  18,  1865. 

Rev.  and  Dear  Sir: — At  the  annual  Easter  meeting  last 
evening,  the  following  resolutions  were  passed  by  a  vote  of 
thirty-four  yeas  to  fifteen  nays. 

“  Resolved ,  That  the  proprietors  of  St.  Peter’s  Church,  in 
Parish  meeting  assembled,  feel  constrained  to  express  their 
opinion  and  conviction  that  the  interests  of  the  Parish  will 
be  best  subserved  by  a  termination  of  the  connection  between 
them  and  their  present  Rector. 

“  Resolved ,  That  the  clerk  cause  a  copy  of  these  resolutions 
to  he  sent  to  Rev.  Mr.  Pickman,  and  that  when  this  meeting 
adjourn,  it  adjourn  to  meet  at  this  place  on  Monday  evening 
next  at  71  o’clock  p.  m.” 

To  this  the  Rector  replied,  that  were  he  “  to  accede  to  their 
resolution,  he  would  go  from  them  with  an  utterly  ruined 
character that  while  he  “  had  been  assailed  by  public 
slander  with  a  grossness,  a  pertinacity,  and  a  malignity 
which  falls  to  the  lot  of  few  men,”  they  had  refused,  as  a 
body,  to  bring  any  charges  against  him,  by  meeting  which  he 
could  defend  himself,  and  that  in  short  he  “  felt  constrained 
to  express  his  ‘  opinion  and  conviction,’  that  the  interests  of 
the  Parish  and  the  interests  of  the  Rector  would  be  materially 
injured  by  a  termination  of  the  connection  existing  between 
them  at  present.” 

At  a  subsequent  meeting  of  the  “  proprietors,”  the  follow¬ 
ing  resolution  was  passed  by  a  vote  of  thirty-seven  to  eight. 

“  Resolved ,  That  for  the  purpose  of  bringing  back  harmony 
to  the  Parish,  and  wholly  disclaiming  any  intention  of  impu¬ 
ting  to  the  Rector  any  wrong,  the  proprietors  hereby  re¬ 
iterate  their  opinion  as  to  the  expediency  and  necessity  of 


96 


such  dissolution,  and  most  respectfully  and  earnestly  request 
their  Rector,  the  Rev.  Wm.  Rawlins  Rickman,  to  resign  his 
charge  of  this  Parish.” 

The  Rector  declining  to  follow  the  advice  of  these  gen- 
tlemen,  at  a  subsequent  meeting,  hy  a  vote  of  thirty-seven  to 
nine,  they  declared  the  pastoral  relation  dissolved,  and 
appointed  a  committee  “  to  apply  at  once  to  the  Bishop  for 
his  concurrence  in  such  dissolution.” 

The  application  having  been  made,  the  Bishop  replied  to 
the  chairman  of  the  committee  as  follows : 

Boston,  May  10, 1865. 

My  Dear  Sir  :• — I  have  received  from  you  a  copy  of  certain 
proceedings  of  the  proprietors  of  St.  Peter’s  Church,  Salem, 
including  a  resolution  which  was  passed  dissolving  the 
pastoral  relations  between  the  Parish  and  its  Rector,  and 
appointing  a  committee  to  ask  for  my  concurrence  in  such 
dissolution.  You  also,  on  behalf  of  said  committee,  request 
me  to  indicate  the  time,  place  and  mode  in  which  it  will 
please  me  to  meet  the  committee,  and  hear  their  views  on 
the  subject. 

Having  already  heard  statements  from  two  gentlemen  of 
St.  Peter’s,  in  a  recent  visit  which  they  made  to  me,  and  also 
stated  my  views  to  them,  I  do  not  perceive  tlie  necessity  of  a 
personal  conference  with  the  committee.  In  one  of  the  reso¬ 
lutions  passed  on  May  1st,  the  proprietors  declare  that,  in 
one  resolution  adopted  in  the  annual  Easter  meeting,  they 
had  “  no  purpose  of  casting  any  imputation  upon  the  charac¬ 
ter  of  their  Rector  in  any  of  his  relations  as  a  man,  a  clergy¬ 
man,  or  a  Christian,”  and  in  the  other  resolution  they  wholly 
disclaim  “  any  intention  of  imputing  to  the  Rector  any 
wrong.” 

This  being  the  statement  of  the  proprietors  in  regard  to 
the  Rev.  Mr.  Rickman,  I  feel  that  I  should  do  a  great  act  of 
injustice  to  him ,  by  concurring  with  the  action  of  the  pro¬ 
prietors.  I  therefore  decline  so  doing. 

I  am  very  respectfully  yours, 

MAYTOY  EASTBURX. 


John  Kilburn. 


97 


APPEXDIX  IV. 

The  case  of  the  Rev.  Libertus  Van  Bokkelen,  D.  D., 
Rector  of  St.  Timothy’s  Church,  Catonsville,  Baltimore 
county,  Maryland. 

On  Easter  Monday,  1871,  an  election  was  held  in  this 
Church,  for  members  of  the  Vestry.  The  result  caused  great 
dissatisfaction  in  the  Church,  being  brought  about,  as  it  was 
alleged,  by  the  votes  of  persons  who  were  neither  members 
of  nor  communicants  at  that  Church,  and  some  of  whom  were 
members  of  other  churches.  It  was  also  alleged  that  some 
of  the  Vestrymen  elected  were  ineligible  to  the  office  for  the 
same  reasons.  On  April  24tli,  1871,  the  Vestry  met,  and  a 
motion  was  offered  proposing  to  declare  the  Rectorship  of 
St.  Timothy’s  Church  vacant,  on  and  after  May  1st.  This  the 
Rector  ruled  out  of  order,  and  declined  to  call  the  vote  upon  it. 
The  Register  then  demanded  the  yeas,  to  which  some  persons 
responded.  The  nays  were  not  called,  nor  was  the  result  of 
the  vote  declared,  the  persons  present,  and  the  Rector,  leaving 
the  room  instantly,  without  the  formality  of  an  adjournment. 
It  was  alleged  that  this  was  the  work  of  a  Jew  against 
many  in  the  congregation.  On  May  1st,  1871,  the  Register 
and  Wardens  demanded  of  the  Rector,  the  keys  of  the 
Church,  and  all  the  Church  property  in  his  hands.  This 
demand  he  refused  to  comply  with,  and  stated  that  he  could 
not  recognize  the  right  to  interfere  with  his  duty  as  a  settled 
Rector,  nor  did  he  believe  them  to  represent  the  will  of  the 
congregation,  by  which,  clearly  expressed,  he  was  ready  to 
abide.  On  this  same  day,  a  meeting  of  the  congregation  was 
held,  at  which  the  Rector  stated  the  above  facts,  and  ap¬ 
pealed  to  them  to  know  their  will.  It  was  by  them  unani¬ 
mously 

Resolved,  That  the  congregation  of  St.  Timothy’s  Church, 
approve  and  endorse  the  action  of  their  Rector,  in  refusing 
to  give  up  the  keys  of  the  Church,  or  to  relinquish  his  con¬ 
trol  over  any  portion  of  the  Church  property,  committed  to 


98 


his  cave;  and  we  direct  him  to  retain  possession  of  the  same 
as  heretofore. 

Also,  resolved ,  That  we  recognize  him  as  the  Rector  of  St. 
Timothy’s  Church,  and  approve  his  decision  to  continue  the 
discharge  of  the  duties  of  his  office,  and  advise  him  not  to 
regard  the  action  of  persons  who  do  not  represent  our  will, 
and,  by  their  conduct,  prove  themselves  not  to  he  exponents 
of  the  wishes  or  interests  of  the  Church. 

It  ivas  also  resolved ,  That  a  committee  he  appointed  to  lay 
all  the  facts  before  the  Bishop  of  the  Diocese,  and  to  ask  his 
interposition  and  paternal  counsel. 

The  Vestry  also  prepared  a  statement  of  the  case,  and  the 
action  taken  by  them,  and  submitted  it  to  the  Bishop. 

The  Bishop  replied  to  their  communication  as  follows: 

Madison  Square,  May  10, 1871. 

David  Fowler,  Esq., 

My  Dear  Sir  : — I  have  given  my  best  attention  to  the 
paper  bearing  your  signature,  with  others,  which  I  yesterday 
received  through  the  kind  attention  of  Mr.  F.  TV  Brune,  and 
about  which  you  and  I  have  had  some  conversation  at  our 
casual  meeting:  in  the  street. 

Remembering  the  tenor  of  remarks  which  then  fell  from 
you,  I  know  that  you  will  be  surprised  to  learn,  that  I  find 
your  case  less  strongly  put,  as  regards  numbers,  in  your  state¬ 
ments,  than  I  had  been  led  to  expect  by  the  partial  investiga¬ 
tion  I  had  already  made. 

Of  the  proceedings  of  the  Vestry  elected  on  Easter  Mon¬ 
day,  I  had  also  been  informed,  in  exact  accordance  with  your 
account,  and  with  rather  more  particularity. 

But  your  account  of  the  measures  taken  by  those  dissatis¬ 
fied  with  the  proceedings  in  question,  is  less  accurate,  both 
as  to  their  form  and  tendency,  and  as  to  their  grounds. 

I  understand  them  to  question  the  legality  of  the  election 
of  the  present  claimants  to  be  a  Vestry — not  on  any  ground 
of  irregularity  or  informality  in  the  election,  but  on  the 
ground  of  insufficient  qualification,  both  of  some  of  the  per¬ 
sons  admitted  to  vote,  and  of  some  of  the  persons  chosen  to 
be  Vestrymen. 


99 


If  either  of  the  latter  were  an  unhaptized,  non-commu¬ 
nicant  person,  or,  being  a  baptized  person,  were  at  the  time 
of  his  election,  actually  a  member  of  a  Board  of  Trustees  of 
another  religious  denomination,  such  choice  was  undoubtedly 
invalid,  by  the  terms  of  the  Constitution  of  St.  Timothy’s 
Church,  as  I  understand  them. 

But  it  does  not  appertain  to  my  office  to  decide  the  ques¬ 
tion  of  legality ;  which  I  may,  nevertheless,  have  a  clear 
opinion  as  to  the  question  of  propriety. 

The  opposition  to  the  action  of  the  body  claiming  to  be 
the  Vestry,  was  based  on  grounds  quite  independent  of  the 
question  of  legal  election.  The  powers  of  the  Vestry  being 
derived  from  the  Constitution,  does  not  extend  to  such  ac¬ 
tion,  as  you  state  the  majority  of  the  Vestry  to  have  at¬ 
tempted  to  take  by  a  resolution  for  the  removal  of  the  Rector. 
The  position  of  that  officer  of  the  Church  cannot  be  affected 
by  any  action  of  the  Vestry,  subsequent  to  his  election, 
under  the  Constitution. 

It  is  a  consequence  of  the  powerlessness  of  the  Vestry  to  re¬ 
move  a  Rector,  that  no  action  of  that  body  can  effect  the 
right  of  a  Rector  to  receive  all  contributions  for  his  support,  or 
of  individual  members  of  the  congregation  to  make  and  collect 
such  contributions.  Any  resolution  of  the  Vestry  about 
contract  with  the  Rector,  can  only  affect  the  liability  of  the 
body  as  a  Corporation. 

The  occupation  of  a  Rectory  is  a  consequence  of  the  tenure 
of  Rectorship,  unless  stipulation  to  the  contrary  was  made 
and  agreed  to  at  the  time  of  election. 

On  these  grounds  I  understand  the  opponents  of  your 
measures  to  base  their  determination  to  continue  the  recog¬ 
nition  of  the  present  incumbent  of  St.  Timothy’s  Church  as 
the  lawful  Rector,  entitled  to  the  occupancy  of  the  Rectory, 
and  the  receipt  of  all  contributions  made  for  the  support  of 
the  ministry  in  the  Church,  and  the  exercise  of  all  canonical 
functions  and  rights  pertaining  to  the  Rector’s  office. 

As  at  present  informed,  I  cannot  regard  their  determina¬ 
tion  otherwise  than  as  well  taken. 

I  think  it  right,  in  this  connection,  to  state  to  you  that 
after  considering  a  memorial  presented  to  the  Rev.  Dr.  Van 


100 


Bokkelen,  with  the  signatures  of  a  larger  number  of  the 
members  of  the  congregation  of  St.  Timothy’s  Church  than 
are  claimed  to  be  disposed  to  concur  in  your  statement,  and 
conferring  upon  the  subject  of  its  contents  and  signatures 
with  the  highlyr  espectable  delegation,  which  laid  it  before 
me,  I  deemed  myself  bound  to  give  my  official  opinion  un¬ 
favorably  in  relation  to  any  proposal  of  resignation  of  the 
Rectorship. 

As  informed  both  by  that  document  and  conference,  and 
by  the  remarkable  extent  to  which  I  find  them  corroborated 
by  the  contents  of  your  statement,  !  cannot  but  be  of  opin¬ 
ion  that  the  Rector  of  St.  Timothy’s  owes  it  to  the  rights  of 
the  majority  of  the  congregation  for  which  he  ministers,  and 
to  his  own  obligation  to  maintain  inviolate  the  established 
order  o-  the  Church  of  which  he  is  a  Minister,  not  to  forsake 
his  position  without  other  and  more  sufficient  grounds  for 
vacating  it  than  have  as  yet  been  made  apparent. 

Permit  me,  in  conclusion,  to  take  the  liberty  of  suggest¬ 
ing,  that  if  the  numerous  and  respectable  body  of  persons, 
attested  in  the  list  appended  to  your  document  to  be  ready 
and  desirous  to  become  pew-holders  in  St.  Timothy’s  Church, 
but  unable  to  do  so  for  want  of  harmony  with  Dr.  Van 
Bokkelen  and  his  friends,  should  be  found  able  and  willing 
to  unite  in  the  support  of  ministrations  more  agreeable  to 
their  own  sense  of  need  and  fitness,  they  are  amply  sufficient 
to  organize,  under  leave  of  the  Convention  of  the  Diocese, 
a  congregation,  in  which  it  would  he  in  their  power  to  regulate 
matters  in  accordance  with  their  own  views,  while  the  rapidly 
increasing  population  and  prosperity  of  that  part  of  Balti¬ 
more  county,  would  make  the  provision  of  an  additional 
Church  so  set  on  foot,  highly  seasonable  and  commendable, 
provided  the  discretion  to  be  expected  were  exercised  in  the 
choice  of  a  locality. 

1  am,  dear  sir,  with  affectionate  regard, 

Your  faithful  friend  and  servant, 
WILLIAM  R.  WHITINGIIAM, 
Bishop  of  Maryland. 


lo  <1  lo  *  b  S'  'OCrP  l 


